Official Administrator, in His Capacity As the Administrator of the Estate of Aida Henriette Vine Nee Agabeg v. Ma Wah Yan, in His Capacity As the Co-executor of the Estate of the Late Vine Peter Alan Lee, and As the Executor of the Estate of the Late Agabeg Godfrey Avryl and Another

HCMP 1641/2024

[2025] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1641 OF 2024

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REASONS FOR JUDGMENT

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INTRODUCTION

1.By Originating Summons issued on 29 August 2024, the plaintiff sought, inter alias, the following orders:

(1)  An order against the 1^st and 2^nd defendants for full inventory and account, on oath with all relevant documents exhibited, of the estate of the late Vine Peter Alan Lee and of their dealings therewith;

(2)  An order against the 1^st defendant for full inventory and account, on oath with all relevant documents exhibited, of the estate of the late Agabeg Godfrey Avryl and of his dealings therewith.

2.This Reasons for Judgment only concerns the claim made by the plaintiff against the 1^st defendant, who has not entered appearance in these proceedings, and an order in terms of the Originating Summons was therefore made at the call-over hearing on 20 January 2025.

3.In relation to the 2^nd defendant, as he opposes the application, directions have been given at the said call-over hearing for the further disposal of the case.

BACKGROUND OF THE APPLICATION

4.Madam Vine Aida Henriette (“the Deceased”) passed away on 9 November 2007.

5.On 22 May 2014, the Official Administrator obtained the Letters of Administration of the Deceased’s estate.

6.The Deceased’s husband, the late Vine Peter Alan Lee (“the Husband”), passed away on 13 April 2005. A grant of probate was issued on 19 August 2005 to the 1^st and 2^nd defendants as co-executors of the Husband’s last will dated 3 January 2005 (“Husband’s Will”).

7.Under the Husband’s Will:

(1)  The 1^st and 2^nd defendants were appointed as executors and trustees of the Husband’s Will;

(2)  the Husband’s estate would be distributed among various family members of the Husband;

(3)  the Deceased was entitled to 5 million Pounds Sterling from the Husband’s estate.

8.On the other hand, the Deceased’s brother, the late Agabeg Godfrey Avryl (“the Brother”), passed away on 10 April 2005. A grant of probate was issued on 21 August 2006 to the Deceased and the 1^st defendant as executors of the Brother’s last will dated 29 October 1999 (“Brother’s Will”).

9.Under the Brother’s Will:

(1)  The Deceased and the 1^st defendant were appointed executors and trustees of the Brother’s Will;

(2)  Apart from a sum of $3 million which was given to another beneficiary, the residuary estate would go to the Deceased.

10.It can therefore be seen that the 1^st defendant acted as executor for both the Husband’s estate (together with the 2^nd defendant) and the Brother’s estate (solely, following the death of the Deceased on 9 November 2007).

11.Since 2014, the Official Administrator has contacted Messrs. Hobson & Ma (“H&M”), the solicitors’ firm of which both defendants were partners at the time, in order to find out the progress of the administration of the Husband’s estate and the Brother’s estate.

12.By letter dated 30 July 2014, the Official Administrator’s solicitors (“WKM”) wrote to H&M and asked for an administration account of the Husband’s estate and the Brother’s estate, together with cheques in respect of the Deceased’s entitlement.

13.By letter dated 15 August 2014, H&M informed WKM, inter alia, that:

(1)  The administration of the Brother’s estate had been kept in abeyance;

(2)  H&M was updating the administration accounts of the Brother’s estate as at 31 July 2014 and would send it to the Official Administrator soon;

(3)  The administration and distribution of the Husband’s estate had been completed, and the Deceased’s entitlement had been fully paid to her prior to her death;

(4)  From the distribution of the Husband’s estate, a sum of GBP 150,000 had been withheld from the Deceased’s entitlements for payment of Hong Kong estate duty and other expenses.

14.From 2015 to 2020, various letters had been sent by WKM to H&M, requesting for various information and documents. However, H&M did not reply at all.

15.After 2 more chasers were sent in 2021, H&M finally replied by letter dated 16 July 2021, in which H&M claimed that they were finalising the accounts of the Brother’s estate and the Husband’s estate, and shall send WKM the same by 30 July 2021.

16.On 11 August 2021, H&M wrote to Messrs. Withers, which appeared to be representing one of the Husband’s children (one of the beneficiaries of the Husband’s estate), with which the estate accounts of the Husband’s estate and the Brother’s estate had been enclosed. The said letter was copied to WKM.

17.Having considered the said letter, the Official Administrator took the view, inter alia, that:

(1)  It was unclear as to whether full distribution from the Husband’s estate had really been distributed to the Deceased;

(2)  There was no documentation to substantiate the payment allegedly made from the Husband’s estate to the Deceased as previously requested;

(3)  It was unclear when some of the assets of the Brother’s estate had been distributed and to whom.

18.As a result, WKM sought further responses and documents from H&M by letters sent between 2021 and 2023. However, no reply from H&M was received.

19.On 31 May 2024, the plaintiff’s current solicitors, Messrs. Liu, Chan and Lam (“LCL”) sent another letter to H&M and threatened to commence legal action.

20.After a follow-up letter sent by LCL, the 1^st defendant finally replied by letter dated 23 August 2024, in which the 1^st defendant requested LCL to send the letter dated 31 May 2024 again for his “immediate action”.

21.However, there was no further reply received from the 1^st defendant.

22.The plaintiff therefore commenced these proceedings on 29 August 2024.

23.The 1^st defendant has not lodged any acknowledgement of service of the Originating Summons herein.

24.As I was satisfied that the 1^st defendant has due notice of the hearing on 20 January 2025 (as aforesaid, he has not lodged acknowledgement of service anyway), I considered it appropriate to proceed with the hearing in his absence.

APPLICABLE LEGAL PRINCIPLES

25.Section 56 of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong) (“the Ordinance”) provides that:

“The personal representative of a deceased person shall, when lawfully required so to do, exhibit, by affidavit filed in the court, a true and perfect inventory and account of the movable and immovable property of the deceased, and the court shall have power as heretofore to require personal representatives to bring in inventories.”

26.In Re Estate of Lee Da Kor [2010] 1 HKLRD 415, Poon J (as Poon CJHC then was) explained that:

“17. It is the duty of an executor to keep clear and accurate accounts, and to be always ready to render such accounts when called upon to do so : see Halsbury’s Laws of Hong Kong, 2008 Re-Issue, Vol.27, para.425.897. In order to provide a true and perfect account, the executor must provide details of the whereabouts of all properties (including cash) which he is bound to administer : see Edwin Kwok Wing Yun v Lee Shuk Yee, HCMP3904/2001, unreported, 7 June 2002, per Chung J at para.19.

18. Further, under section 56 of PAO, personal representatives are, when so ordered by the court, to exhibit on oath in the court a full inventory of the estate and render an account of the administration of the estate to the court. Correspondingly, the court may under Order 85, rule 2(3) of the RHC order executors to furnish and verify accounts.

[…]

20. In opposing the application, Mr Lin first submitted that what the plaintiff is really after is the Monies. The repeated inquiries for information about the estate were to pressurize the executors to cave in to his request for distribution of the Monies. Once the Monies are ordered to be distributed to him, there is no need for an account. I disagree. The plaintiff is also entitled to share in the residue estate after the distribution of the Monies. A proper and full account is necessary for the due administration and distribution of the residue estate.”

DISCUSSION

27.In my view, this is a clear case in which the 1^st defendant should be ordered to produce the accounts. The grants of probate were issued around 20 years ago, and the Official Administrator had made various requests for information and documents which had all fallen on deaf ears. The Official Administrator is entitled to have the accounts together with the documents in support so that he can in turn complete the administration of the Deceased’s estate as soon as possible.

28.I therefore made at the hearing an order in terms of paragraphs 1 and 2 of the Originating Summons against the 1^st defendant.

COSTS

29.I had reserved costs of the action, which will be dealt with at one go upon the disposal of the plaintiff’s claim against the 2^nd defendant.

Mr Kerby Lau, instructed by Liu, Chan and Lam, for the plaintiff

The 1^st defendant was not represented and did not appear