Chan Kam Shing Alexander v. Chan Tin Yau

HCAP 5/2022 &

HCMP 85/2022

[2023] HKCFI 1092

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 5 OF 2022

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BETWEEN

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 85 OF 2022

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________________________

BETWEEN

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J U D G M E N T

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A.  HCAP 5/2022

1.The plaintiff brings this probate action against his brother, the defendant, to propound the last will of their deceased sister Mimi Chan (“Mimi”)  dated 17 April 2019 (“Last Will”), in solemn form of law.  This action is necessitated due to the caveats entered by the defendant in respect of Mimi’s estate.

2.On 18 January 2022, the plaintiff filed and served the Writ and the Statement of Claim in this action.  The defendant failed to acknowledge service.  By Order dated 22 November 2022, Master Kent Yee ordered, inter alia, that the plaintiff’s claims be tried on written evidence under Order 76, rule 6 of the Rules of the High Court.

3.The plaintiff’s pleaded case is straightforward.  The Last Will was duly executed by Mimi as witnessed by her lawyers.  Mimi was of testamentary capacity at the time, and knew and approved of the contents of the Last Will.  The conditions for the Last Will to be propounded in solemn form are readily satisfied.  It follows that the Last Will should be propounded.

4.By an email to the plaintiff dated 8 March 2023, the defendant indicated that he would not appear at this hearing on the basis that he does not trust the Hong Kong legal system and that the probate action should have proceeded in New Zealand.

B.  BACKGROUND

5.The following facts are undisputable.

B1.  The family

6.Mimi is the sister of Chan Tit Fu William (“William”), Chan Oi Lin Irene, the plaintiff, and the defendant.

7.In January 2010, their father, Chan Sui Hung (“Father”), died testate, naming Mimi as the sole executrix and sole beneficiary of all his estate.  The estate included a property at the 2^nd Floor of No 69 Ma Ta Chung Road & Balcony, Perfect Unity Court, Nos 63-69 Ma Tau Chung Road, Hong Kong (“MTC Property”), as well as credit balance in several bank accounts.

8.During her lifetime, Mimi recalled that her Father had told her that his intention was to leave all his assets to Mimi to provide for her during her lifetime, and after Mimi passed away, the assets should then be distributed among the plaintiff and the defendant in equal shares so that the plaintiff and the defendant could support their offspring.

B2.  The First Will and Second Will

9.On 29 December 2006, Mimi made her first will (“First Will”)  in Chinese.  Under the First Will:

(1)  The defendant was appointed as the sole executor and trustee.

(2)  The residuary estate of Mimi was to be distributed equally between the plaintiff and the defendant.

10.On 23 and 24 February 2019, Mimi told the plaintiff’s wife, Chan Helen Oi Lai (周愛麗)  (“Helen”), about her intention to make a second will.  Mimi informed Helen that (i) the original of the First Will could not be found, (ii) she had asked a solicitor, Mr Simon Wong, to make a new will for her in English and have the Chinese First Will cancelled, (iii) the points in the new will must be the same as those in the old will; (iv) she also asked if Helen would agree to be the second co-executrix along with the defendant.  Helen expressed reluctance to be an executrix.

11.Around that time, there was a WhatsApp group titled “Care for Mimi” which comprised of, inter alios, Mimi, the plaintiff, the defendant, William, and Helen.  The group had been formed when Mimi was diagnosed with inoperable bladder cancer.  It can be seen from Mimi’s messages that:

(1)  She was at all times determined to split her assets 50-50 for the plaintiff and the defendant and to follow her Father’s instructions.

(2)  She was likewise determined to name a second executor in addition to the defendant.  Eventually, she wished to appoint the plaintiff as a co-executor and for the plaintiff to “check” her assets after she died.

(3)  She believed that a new will had to be made because the defendant lost the original of the First Will.

12.On 19 March 2019, Mimi executed her second will (“Second Will”), which was in English and was signed by her in the presence of Mr Simon Wong and a paralegal.  Under the Second Will:

(1)  The plaintiff and the defendant were appointed executors and trustees.  But if they should die in Mimi’s lifetime or renounce probate or refuse or be unable to act as executors, Mimi shall appoint Helen, Chan Wing Cheuk and Chan Wing Chuen in their place.

(2)  The estate of Mimi was to be given to her trustees, and the residuary estate was to be held for the plaintiff and the defendant in equal shares.  But if they should predecease her leaving any issue alive at her death, then such issue shall have the benefit of the estate per stirpes.

13.It transpired that Mimi was not satisfied with how the Second Will was handled:

(1)  Before the execution of the Second Will, Mimi had specifically informed the plaintiff that the original of the Second Will should be kept in her drawer at her nursing home and not be taken away by the defendant.

(2)  According to the WhatsApp messages Mimi forwarded to the plaintiff, the defendant took the original of the Second Will after its execution, leaving only a copy of it in a drawer.  The defendant did not deny having taken the original.

(3)  Mimi said the defendant was “tricky” and suspected that the defendant was plotting against her.  Mimi became very upset with both the defendant and Mr Simon Wong, as she had wanted to keep the original to herself and believed that a copy of the will had “no use in law”.

(4)  Mr Simon Wong therefore advised Mimi that if she would like to keep the original, she could execute another will with the same contents and revoke the Second Will.  The defendant understood that Mimi was so advised.

B3.  The third/Last Will

14.As a result, Mimi proceeded to prepare a third will on 17 April 2019, ie the Last Will.  She contacted Ms Ellen Au-Yeung, partner of Messrs Siao Wen and Leung,[1] and asked her to attend the execution of the Last Will.

15.It can be seen from the evidence that Mimi was single-minded and undeterred in her decision to proceed with the Last Will even though (i) the plaintiff had previously suggested to Mimi not to name him and the defendant as beneficiaries; (ii) the plaintiff had told Mimi that there was no strict need for a new will to be made.

16.On either 15 or 16 April 2019, Helen met Mimi at the hospital.  Mimi told Helen that she could not trust the defendant and insisted on signing another will afresh, and that she had asked Ms Ellen Au-Yeung to prepare the Last Will.  Mimi also told Helen that after execution, the original Last Will should be given to the plaintiff.

17.As to the detailed circumstances of the execution of the Last Will on 17 April 2019, the evidence shows that:

(1)  At 08:24, Mimi texted Helen asking her to take the will after signing.

(2)  At 11:56, Helen asked Mimi to confirm the contents of the will as regards executorship, and when her lawyer would come.

(3)  At 12:04, Mimi replied to Helen confirming that she wanted both the plaintiff and the defendant to be executors together.

(4)  At 16:00, Helen arrived at the Hong Kong Buddhist Hospital with Winnie Fong, a relative of Mimi.  Mimi was able to communicate with her rationally.

(5)  At around 18:30, Ms Ellen Au-Yeung arrived.  Ms Ellen Au-Yeung gave the Last Will for Mimi to read and asked Mimi to confirm whether it represented her true intention and wishes, to which Mimi said yes.

(6)  Mimi then signed on the Last Will in the presence of Ms Ellen Au-Yeung and her colleague Mr John Wong, who then signed on the will as witnesses.

(7)  The original was returned to Mimi and Mimi immediately settled the firm’s bill by cheque.  Mimi then requested Helen to take the original back to the plaintiff.

(8)  After the lawyers left, Mimi told Helen that she could finally rest in peace as she had acted in accordance with her Father’s last wish to split his assets equally between the plaintiff and the defendant.

(9)  According to the Medical Report of Dr Chim, Ming Yam Thomas of the Department of Medicine of Queen Elizabeth Hospital (“Medical Report”)  dated 8 January 2022, Mimi was alert and conscious during her hospitalisation from 16 April 2019 to 11 May 2019.  While she was known to have had suffered from paranoid schizophrenia, she had no psychiatric concern necessitating psychiatrist consultation during her period of hospitalisation.

18.The contents of the Last Will are the same as that of the Second Will.

19.On 25 July 2019, Mimi passed away, at the age of 74.

B4.  Procedural history

20.Since 30 August 2019, the defendant has through his solicitors entered a total of 6 caveats in respect of Mimi’s estate, thereby preventing the plaintiff from taking out grant of probate.

21.On 19 November 2021, the defendant’s caveat was given a warning issued by the Probate Registry at the instance of the plaintiff.

22.On 3 December 2021, the defendant entered an appearance to the plaintiff’s warning.

23.On 18 January 2022, the plaintiff filed the Writ and the Statement of Claim.  The defendant did not file any Acknowledgement of Service within 28 days or at all.

24.On 7 October 2022, the plaintiff applied for, inter alia, trial of the action on written evidence and leave to adduce expert medical evidence, which was granted by Master Kent Yee on 22 November 2022.

C.  THE LAST WILL SHOUND BE PROPOUNDED

25.A person who propounds a will has the legal and persuasive burden of proving on a balance of probabilities that (i) there was due execution of the will; (ii) the testator was of testamentary capacity and (iii) the testator knew and approved of the contents of the will: Chan King Hung v Chan Siu Kwan Paulie[2021] HKCFI 670 §20.

C1.   Last Will duly executed

26.Under section 5(1)  of the Wills Ordinance, Cap 30 (“WO”), a will is valid if: (i) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; (ii) it appears that the testator intended by his signature to give effect to the will; (iii) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and (iv) each witness either attests and signs the will, or acknowledges his signature, in the testator’s presence.  No form of attestation is necessary.

27.I am satisfied that the formalities under section 5 of the WO have been complied with in the present case:

(1)  The Last Will was in writing and was signed by Mimi.

(2)  It would certainly appear that Mimi intended by her signature to give effect to the will.

(3)  The signature was made by Mimi in the presence of Ms Ellen Au-Yeung and her colleague Mr Wong Tat Keung (also known as Mr John Wong).

(4)  Ms Ellen Au-Yeung and Mr John Wong both attested and signed the will in Mimi’s presence.

C2.  Mimi had testamentary capacity

28.The legal principles on testamentary capacity are not in doubt:

(1)  In determining whether a person had testamentary capacity to make a will, the court will ask whether the deceased was: (i) capable of understanding the nature of the act of making a will and its effects; (ii) capable of understanding the extent of the property of which she is disposing; and (iii) able to comprehend and appreciate the claims to which she ought to give effect: Chan King Hung,supra§24.

(2)  The question of testamentary capacity is a practical question to be assessed holistically by reference to the whole of the evidence (and not confining to the medical evidence), and judicial common sense is to be applied in the exercise: Chan King Hung,supra§24.

(3)  If a will is rational upon its face and duly executed, there is a presumption of testamentary capacity: Chan Wai Ming v Xie Weiqin [2022] HKCFI 3327, §§119-120.

(4)  It is not necessary for a testator to be in perfect health in order to possess the requisite testamentary capacity.  The question of unsoundness of mind is one of degree: Cheung Wai Lan v Kwok Chung Chee,HCAP 9/2009 (unrep, 29/05/2014)  §§40-42.  A mental impairment does not per se prevent a testator from having sufficient capacity, but it is the degree of that impairment and its effect on the person’s understanding: Testamentary Capacity (1^st ed) §§1.20, 13.32-13.33.

(5)  Mere non-compliance with the so-called “Golden Rule” in assessing a testator’s testamentary mental capacity does not by itself demonstrate the invalidity of the will.  The “Golden Rule” is not law and is only guidance for solicitors.  Whether or not a proponent succeeds in propounding a will depends on the facts and evidence of the case and whether he can discharge the necessary burden in proving the requisite elements: Chan King Hung, supra §§46-49; Chan Wai Ming, supra§134.

29.As submitted by the plaintiff, the presumption of testamentary capacity clearly applies in the present case:

(1)  As explained above, I am satisfied that the Last Will was duly executed.

(2)  The Last Will is rational and intelligible.  It contains no unusual terms and is the same in contents as the Second Will.

30.In any event, regardless of whether the presumption of testamentary capacity applies, there is cogent evidence of Mimi’s testamentary capacity at the material time.  The defendant has not adduced any evidence to dispute Mimi’s testamentary capacity.  There is no issue that Mimi’s mind was impaired at the time, or that her medical history of schizophrenia had any bearing or influence on her making of the Last Will.

31.This is borne out firstly by the Medical Report, which confirms that Mimi was alert and conscious and had no psychiatric concern necessitating psychiatrist consultation during the period of hospitalisation since 16 April 2019.  She was certified mentally stable when subsequently visited by a psychiatric nurse after discharge in May 2019.

32.This is also borne out by the affidavit evidence:

(1)  Helen’s evidence of her interactions with Mimi speaks to Mimi’s alertness and soundness of mind between February 2019 and 17 April 2019.  Helen found Mimi to be very organised in the preparation of the Second Will and the Last Will, and was intimately involved in the procedural steps leading up to the wills’ execution.

(2)  Ms Ellen Au-Yeung’s evidence states that Mimi appeared logical and normal in their interactions.

(3)  The plaintiff’s evidence is that Mimi’s schizophrenia has stabilised since the 1990s when she was treated by the plaintiff’s psychiatrist friend in New Zealand.  There is no evidence to suggest that Mimi was suffering from any symptoms of schizophrenia at the time when the Last Will was made.

33.Similarly, the documentary evidence overwhelmingly shows that Mimi had capacity to understand the nature of the act of making the Last Will and its effects, the extent of the property she was disposing, as well as claims to which she ought to give effect:

(1)  Mimi was able to explain her testamentary intentions, including her wish to appoint co-executors and her wish to follow her Father’s instructions on how her residual estate should be split between the plaintiff and the defendant.

(2)  Mimi was clearly capable of understanding, and did understand, the nature of a will, when a will would take effect, and her right to change its terms before death.

(3)  Mimi was capable of understanding, and was aware, that her estate comprised of the MTC Property and bank balances.

(4)  Mimi was aware of the significance and solemnity of the Last Will.  She instructed Messrs Siao Wen and Leung to prepare it.  She also personally ensured that Helen’s name was correctly written on the will, that there would be no mistake in the text of the will, and that the original would be handled and kept properly.

(5)  Mimi was also clearly alive to her decision not to make provision for William even though William was her brother.

34.In short, every indication was that Mimi possessed the requisite testamentary capacity to make the Last Will.

C3.  Mimi had knowledge and approval

35.The final requirement of validity is that the deceased knew and approved the contents of the will.  It requires no more than an ability to understand and approve choices that have already been made: Chan Wai Ming, supra§135.

36.It is well established that proof of due execution and testamentary capacity generally means that knowledge and approval would be rebuttably presumed: Chan Wai Ming, supra§136.

37.There is in the present case nothing which rebuts the presumption.  In any event, for essentially the same reasons identified above, Mimi clearly knew and approved of the contents of her Last Will.

38.For all the reasons identified above, I hold that the Last Will should be propounded in solemn form.

D.  HCMP 85/2022

39.This is the plaintiff’s application by Originating Summons dated 28 March 2022 for the removal of the defendant as a co-executor of Mimi’s estate under section 33(3)  of the Probate and Administration Ordinance, Cap 10 (“PAO”).

40.The plaintiff’s application is prompted by the defendant’s want of competence in administering the estate, as well as the complete breakdown of trust between the plaintiff and the defendant, which will inevitably obstruct the future administration of the estate.

41.The Originating Summons was personally served on the defendant.  The defendant has not filed any evidence to oppose the plaintiff’s application, and has indicated that he would not appear at this hearing.

E.  RELEVANT FACTS

42.The parties and Mimi’s family background have been explained above.  Mimi died testate, leaving the MTC Property as her most valuable asset.  Under her Last Will, the plaintiff and the defendant are the only equal beneficiaries, co-executors and co-trustees of her estate.

43.Since Mimi’s death in 2019, disputes erupted between the plaintiff and the defendant in respect of the assets and liabilities of Mimi’s estate.  The plaintiff spent almost two years trying to resolve them amicably with the defendant, inviting the defendant to settle with him on at least two occasions, and inviting the defendant to jointly apply for probate to administer Mimi’s estate with him.

44.However, the plaintiff’s settlement offers were rejected by the defendant.  Caveats were entered and renewed by each party preventing the other from taking out any application for grant of probate.  This eventually led to the plaintiff’s commencement of HCAP 5/2022.

E1.  The defendant’s irrational opposition to the URA’s redevelopment plan

45.In early 2021, a dispute arose between the plaintiff and the defendant in relation to the MTC Property.  It was throughout this episode that the plaintiff came to harbour serious doubts about the defendant’s soundness of mind, competence and overall fitness to be an executor of Mimi’s estate.

46.In February 2021, the Government announced a redevelopment plan for Shing Tak Street/Ma Tau Chung Road (“Redevelopment Plan”)  and authorised the Urban Renewal Authority (“URA”)  to issue acquisition offers to property owners and redevelop the area.

47.Staunchly opposed to the Redevelopment Plan, the defendant lodged an unsuccessful appeal to the Appeal Board, raising a series of confused allegations.  These were summarised at paragraph 11 of the Appeal Board’s Decision dated 18 June 2021.  The defendant contended, for example, that (i) the current legal tender in Hong Kong is “virtual money” which cannot be used to measure the true value of commodities such as residential units, and the URA cannot use those “virtual money” to “confiscate” the real assets of any individual; (ii) urban renewal plans should be abolished by the Central Government pursuant to the National Security Law; (iii) the URA should refer to the Māori experience in New Zealand; (iv) if his suggestions were not followed, it would demonstrate corruption, abuse of power and deception on the part of the relevant Government officials.

48.After losing the appeal, on 6 August 2021, the defendant issued a “Notice of Closure” to “the Judicial Department of Hong Kong and relevant officials of the URA”, in which he stated that he would refuse to accept any documents from the URA, and invited the President of the People’s Republic of China and various Central Government agencies to intervene in the Redevelopment Plan.

49.The defendant advanced numerous ludicrous accusations against the URA, suggesting for example that the URA was a group of “gangsters”employed by corrupt officials to harm families in Hong Kong; that the URA intended to send assassins to murder people and destroy Mimi’s Last Will; that the URA’s Redevelopment Plan was to destroy evidence of corruption and its misappropriation of public funds through the manipulation of colonial laws; that the URA’s offer price was “virtual money” not real money;that the URA was committing a crime to use virtual money; that the URA’s Redevelopment Plan contravened the National Security Law; that the URA should stop proceeding with the Redevelopment Plan until President Xi and Premier Li contacted the defendant to clarify his doubts; the URA should be dismantled and reconstituted according to President Xi’s communist ideas; and the Hong Kong government has been colluding with surveyors.

50.The defendant also alleged that the plaintiff and the plaintiff’s legal representatives were guilty of collusion, fraud, or criminal behaviour.

E2.  The defendant’s irrational opposition to the plaintiff’s ad colligenda bona application

51.As the Redevelopment Plan progressed, the URA offered to purchase the MTC Property at a favourable acquisition price.  As much as the plaintiff would like to take up the URA’s offer, the URA made clear that its offers could only be accepted after the grant of probate and after the plaintiff obtained legal title of the MTC Property.  Owing to the defendant’s irrational opposition to the Redevelopment Plan and his refusal to cooperate with the plaintiff to sell the MTC Property, the initial offer by the URA (HK$21,995,039)  lapsed.

52.On 24 June 2022, the Lands Department wrote to the owners and occupiers of premises within its redevelopment plan, stating inter alia that the ownership of the premises would be reverted to the Government at mid-night 24 September 2022.

53.The URA informed the plaintiff’s lawyers that it was still willing to acquire the MTC Property despite the lapse of its earlier offers.  On the basis that Mimi’s estate would suffer a drastic loss of about 20% of the value of the estate (around HK$4.4 million)  if the URA’s latest offer was not accepted, the plaintiff urgently applied for an ad colligenda bona grant to preserve the value of Mimi’s estate (“ACB Application”).

54.Not only was the defendant opposed to the URA’s offers, the defendant also actively opposed the plaintiff’s ACB Application and applied to have it struck out.  The defendant argued that (i) it would be unwise to trade the MTC Property (being “real money”)  with legal tender, which he believed to be “virtual money”; (ii) there was suspected money laundering in the URA’s acquisition of properties, and so it was necessary to put off the acquisition and have it investigated by the ICAC; (iii) Mimi’s Last Will is logically invalidated; (iv) the URA’s role would be “modified as soon as possible on rolling out the model of Hong Kong Civil Servants’ Co-operative Building Society Housing Scheme (CBS)  matching reconstruction of Hong Kong described on [his] application against URA’s project”;(v) the plaintiff’s lawyers as well as the solicitors attesting to Mimi’s Last Will are guilty of fraud and criminal misconduct; (vi) the laws of Hong Kong should be repealed before 2047; and (vii) the defendant might enlist the UK Parliament’s assistance to reconstruct Hong Kong.

55.The plaintiff’s ACB Application was heard and granted by DHCJ Leung on 27 July 2022.  An independent administrator (“ACB Administrator”)  was appointed to effect the sale of the MTC Property to the URA.  During the hearing, DHCJ Leung had no hesitation in rejecting the defendant’s grounds of opposition.

56.While the MTC Property was eventually sold at HK$21,031,627 to the URA after the appointment of the ACB Administrator by the court, the defendant’s refusal to take prompt steps to cooperate with the plaintiff to accept the URA’s initial offer in the first place resulted in the decrease of the value of the estate by HK$963,412.

E3.  The defendant’s irrational obstruction of the ACB Administrator’s work

57.As the ACB Administrator proceeded to convey the MTC Property to the URA and remove the chattels at the MTC Property, the defendant opposed their disposal without reason.  As a result, the ACB Administrator had to incur extra expenses to store the chattels in a warehouse.

58.Meanwhile, the defendant made attempts to derail the ACB Administrator’s efforts in conveying the MTC Property to the URA, advancing a series of accusations against the plaintiff, the plaintiff’s lawyers, the Government, and even the court:

(1)  On 27 August 2022, he sent emails to the plaintiff, the plaintiff’s solicitor, the ACB Administrator and the solicitor attesting to Mimi’s Last Will, warning them that they should not proceed further with the sale.

(2)  On 20 August 2022 and 24 August 2022, he wrote to the Secretary for Justice and Chief Executive requesting them to take immediate actions to arrest the plaintiff, the plaintiff’s solicitor and the ACB Administrator for money laundering, perjury or robbery, while alleging that DHCJ Leung had insulted justice and the rule of law.

(3)  In his email dated 30 August 2022, he disputed the validity of the ACB Grant, alleging that it was “a very serious criminal offence done in Court of Probate beyond a doubt, leading to collapse of justice”.  Meanwhile, he repeated that the sale of the MTC Property to the URA is “for fiat money of no value” and requested the sale to be overturned.

(4)  On 13 September 2022, he wrote to the Chief Executive and the Secretary for Justice, alleging “corruption and malfeasance of …lawyers, judges and legislators”.  He claimed that “the court of probate and Urban Renewal Section of Lands Department are an undisputed, lawless, organization to confiscate private lands with fiat money”.

(5)  On 14 September 2022, he emailed the ACB Administrator and the plaintiff’s lawyers, again contending that judges and lawyers did not “understand the difference between commodity (real)  money and fiat (imaginary)  money”.

F.  LEGAL PRINCIPLES REGARDING REMOVAL OF EXECUTORS

59.Section 33(3)  of the PAO provides that:

“The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator)  and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.” (emphasis added)

60.It is possible to remove an executor named in a will under section 33(3)  even before a grant has been issued: Lam Chung Wai v Lam Hi Way, HCAP 29/2015 (unrep, 15/12/2017)  §49; Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (21^st ed) §§1.04, 57-20.

61.The principles guiding the court’s exercise of discretion under section 33(3)  are not controversial.  As stated in Man Kai Kwong David v Mak Ying Mui[2022] HKCFI 3649 §20:

“(1)  The discretion to remove an executor or an administrator under section 33 of the PAO involves an assessment and a value judgement in all the relevant circumstances of whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries.

(2)  Not every mistake or neglect of duty, or inaccuracy of conduct of trustees would induce the court to remove the executor or the administrator.

(3)  The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or want of proper capacity to execute the duties, or a want of reasonable fidelity.

(4)  Hostility between the executor/administrator and the beneficiary is not a ground for removal, unless the breakdown of the relations between them is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative.

(5)  In exercising its discretion, the court should have regard to the size of the estate, the nature of the assets that need to be administered, the background and education, training and experience of the remaining and substituted personal representatives and the interests of the beneficiaries. The view of the majority beneficiaries is a relevant factor…” (emphasis added)

62.It is not necessary to establish specific wrongdoing, misconduct or fault on the part of an executor before he can be removed: Li Choi Ping v Xie Yanxian [2022] HKCFI 3042 §§5-6.  The main guide is the welfare of the beneficiaries.

63.While the Court is entitled to take into account the choice of executor by the testator, there is a limit to the weight to be attached to this factor, especially where the removal is based on conduct or circumstances after the death of the testator or arises from a situation which the testator could not have reasonably foreseen at the time when the executor was chosen: Lau Tung Hoi Kent v Lau Tung Kuen [2022] HKCFI 1921 §§33-34.

G.  THE DEFENDANT SHOULD BE REMOVED

64.I agree with the plaintiff that this is a straightforward case of removal.

65.As can be seen from the facts set out in section E above, the defendant lives in his own world.  The disturbing contents of the defendant’s emails and letters reflect generally on the defendant’s inability to engage with actual reality and to put the estate’s interests first.

66.It is also evident that the defendant’s actions, idiosyncrasies and cynical opinions have jeopardised the interest and welfare of Mimi’s estate.  This is clearest in the MTC Property saga, in which the defendant’s irrational complaints against the URA and his stubborn refusal to cooperate with the plaintiff to sell the MTC Property led to a reduction in the property’s value, and eventually led to the need for the ACB Application to be taken out in order to preserve the value of the estate.  The defendant’s handling of the incident reveals a lack of basic judgement and common sense which can be expected of an ordinary office holder.

67.Given the defendant’s resolute opposition to the sale of the MTC Property and his highly unusual views about the nature of monies, it is almost certain that if the defendant were to remain as an executor he would be obstructing the distribution of the sale proceeds.  Both the plaintiff and the defendant’s own interests as co-beneficiaries would be jeopardised by the defendant’s remaining as an executor.

68.As the present removal application is premised on matters which occurred after Mimi’s death, there must be a limit to the weight to be attached to Mimi’s choice of the defendant as a co-executor when she was alive.  There is no reason to think that Mimi could have foreseen the defendant’s behaviour and opinions as set out above.

69.Besides, with the complete breakdown of trust between the plaintiff and the defendant, the continued administration of Mimi’s estate has become impossible.

70.In these circumstances, I agree that the defendant should be removed as an executor.  It is appropriate for the defendant to be removed rather than replaced.  Since the MTC Property has been sold, the remaining assets in Mimi’s estate are only the sale proceeds of the MTC Property currently held by the ACB Administrator, cash and bank balances.  The plaintiff is a professional doctor with an extensive education background.  Considering the nature and extent of Mimi’s estate, the plaintiff is more than equipped to administer the estate by himself.

H.  CONCLUSION AND DISPOSITION

71.For the reasons set out above, I would pronounce for the force and validity of the Last Will in solemn form, followed by a grant of probate to the plaintiff alone.

72.Generally, where two people are named as executors in a will, they do not need to apply for probate together; one alone may be granted probate as the court reserves the power to make a double grant to the other if he applies later: Re Chow Yei Ching (Deceased) [2022] 2 HKLRD 1138 §21(e).

73.In this case, however, as this court agrees that the defendant should be removed as an executor under section 33(3)  of the PAO, it follows that probate should be granted to the plaintiff alone, and it is unnecessary for the court to reserve power to make a double grant.

74.Accordingly, I make the following orders.

75.In HCAP 5/2022:

(1)  The court pronounce for the force and validity of the Last Will in solemn form of law; and

(2)  Probate of the Last Will be granted to the plaintiff as sole executor.

76.In HCMP 85/2022:

(1)  The defendant be removed as a co-executor of the estate of Mimi, and thereafter the plaintiff shall become the sole executor of the estate of Mimi.

77.As regard costs, I order that the plaintiff’s costs in HCAP 5/2022 and HCMP 85/2022 be paid by the defendant, such costs are to be taxed on the indemnity basis if not agreed (and that the plaintiff be at liberty to recover such costs out of the defendant’s share in the estate of Mimi).

78.As for HCAP 5/2022, indemnity costs is justified as the action is entirely caused by the defendant’s irrational objections to the Last Will and his stubborn refusal to cooperate with the plaintiff to obtain joint probate.  Not only that, the defendant made unsubstantiated, scandalous and oppressive accusations of fraud and collusion against the plaintiff and his lawyers, alleging that the Last Will was a counterfeit obtained through fraudulent means.  It is clear that there is no genuine probate issue in this case.  Yet the defendant entered multiple caveats in respect of the estate and through his previous lawyers entered an appearance to the Registry’s warning, preventing the plaintiff from obtaining grant of probate.  But for the defendant’s unreasonable and oppressive conduct, this probate action would not have been necessary in the first place.  An order of indemnity costs against the defendant is therefore plainly appropriate.

79.As for HCMP 85/2022, again indemnity costs is clearly appropriate.  Not only was the defendant oblivious to the needs of the estate, the defendant was persistent in making unfounded and scandalous accusations against the plaintiff, the plaintiff’s lawyers, government officials, and even the court (particularly DHCJ Leung).  Although the defendant did not actively contest these proceedings, indemnity costs should be ordered to censure the defendant’s grave and reprehensible conduct.

Mr John Leung, instructed by Messrs Ronald Tong & Co, for the plaintiff

The defendant was not represented and did not appear