Ho Sze Wing Alice v. Lau Yuk Ling Emily (in Her Personal Capacity and As the Executrix of the Estate of Ho Hin Leung, Deceased Under the Grant of Probate No.Hcag004290/2022)

HCAP 38/2024

[2025] HKCFI 4348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 38 OF 2024

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DECISION

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A.  INTRODUCTION

1.This is the plaintiff’s application made by a summons filed on 25 June 2025 (“the Summons”) for, inter alia, summary judgment on her claims, namely, to revoke the Grant of Probate of the Will of the late Ho Hin Leung (“the Deceased”) dated 11 May 2022 (“the Grant”) and to appoint her as the administratrix of the Deceased’s estate (“the Estate”).

B.  BACKGROUND

2.The relevant background may be summarised as follows.

3.The plaintiff was one of the daughters of the Deceased, who divorced the plaintiff’s mother in 1998.

4.On 5 May 2016, the Deceased executed a will (“the 2016 Will”), which appointed the defendant as the executrix. The plaintiff did not have knowledge about the existence of the 2016 Will until after the death of the Deceased (see below).

5.On 17 May 2018, the Deceased and the defendant married each other.

6.On 9 February 2022, the Deceased passed away.

7.Unbeknown to the plaintiff, the defendant obtained the Grant in respect of the Estate under Grant No. HCAG 004290/2022 as the sole executrix of the Estate on 11 May 2022.

8.On 21 December 2023, the plaintiff commenced this action against the defendant.

C.  SUMMARY JUDGMENT IN PROBATE ACTION

9.It is now well established that the Court may grant summary judgment in a probate action. The relevant principles have been summarised succinctly by G Lam JA in Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, [2023] HKCA 1177:

“3. Summary judgment is, of course, for clear cases, whether in probate or other cases. Where the plaintiff has on his evidence established the constituent elements of his cause of action, it is for the defendant to show an issue in dispute that ought to be tried or that for some other reason there ought to be a trial. In setting up her defence the defendant must condescend upon particulars; the mere assertion in an affidavit of a given situation is not sufficient. Where the defendant has raised factual disputes, the court may nevertheless enter judgment summarily if the defendant’s allegations are not credible. But where the allegations cannot be dismissed in this way, the court will not conduct a trial by affidavit.”

D.  DISCUSSION

10.Broadly speaking, the plaintiff’s claims herein may be divided into 2 parts:

(1)  The revocation of the Grant;

(2)  The appointment of administratrix.

11.It is noteworthy that, while the defendant has indicated by her Acknowledgement of Service filed on 16 October 2024 that she would contest these proceedings, she has never filed any affirmation in opposition. Neither did she file any Defence (after these proceedings had been ordered to continue as if begun by writ). On 12 December 2024, her then solicitors (who was subsequently granted leave on 22 July 2025 to cease to act for her) even wrote an open letter to the plaintiff’s solicitors and confirmed that she had decided not to contest this action further and agreed to the orders sought by the plaintiff (subject to a few minor changes).

12.In other words, the defendant has not shown cause against the plaintiff’s application for summary judgment at all.

13.What is left for this Court to do is to examine the plaintiff’s claim and consider whether she has on her evidence established the constituent elements of her causes of action.

14.As far as the application to revoke the Grant is concerned, reference should be made to section 14 of the Wills Ordinance (Cap.30, Laws of Hong Kong) which provides that:

“(1) Subject to subsections (2), (3) and (4), a will shall be revoked by the testator’s marriage.

(2) A disposition in a will in exercise of a power of appointment shall take effect notwithstanding the testator’s subsequent marriage unless the property so appointed would in default of appointment pass to his personal representatives.

(3) Where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person.

(4) Where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that a disposition in the will should not be revoked by his marriage to that person—

(5) In this section, marriage (婚姻) has the same meaning as in section 2 of the Married Persons Status Ordinance (Cap. 182).”

15.Since it is undisputed that the Deceased got married with the defendant around 2 years after he had executed the Will, there is no doubt that section 14(1) of the Wills Ordinance is applicable.

16.On the other hand, as pointed out by Mr Lai for the plaintiff, the content of the Will does not fall within any of the exceptions of section 14(2) to (4) of the Wills Ordinance.

17.Therefore, the Will is revoked by operation of law.

18.Section 33(1) of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong) (“PAO”) stipulates that:

“Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.”

19.It is apparent that the probate, which was made on the basis of the Will, ought not to have been granted in the present case. It follows that the Grant must also be revoked.

20.The next question is who should be appointed administratrix of the Deceased’s Estate.

21.Rule 21(1) of the Non-Contentious Probate Rules (Cap.10A, Laws of Hong Kong) states that:

“Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely—

(i) the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;

(ii) the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;

[…]”

22.Therefore, the defendant should have first priority in being appointed as the administratrix of the Deceased’s Estate.

23.However, section 36 of the PAO stipulates that:

“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.”

(emphasis added)

24.It is now well established[1] that:

(1)  The words “necessary or convenient” in section 36 of the PAO give the judge a broad discretion, to be exercised in the best interests of the estate;

(2)  What constitute the circumstances to engage the court’s discretion to pass over the executor under the “necessity or convenience” ground must depend on the particular facts of the case before the court. It is a fact-sensitive question to be determined essentially on the actual circumstances of the case. The court will approach the evidence objectively and with a good dose of common sense to see if on the facts of the case the “necessity or convenience” ground is made out;

(3)  The judge is not called upon to determine the parties’ rights and liabilities, nor is it necessary for him to resolve disputed issues of fact;

(4)  In the circumstances where the executor/administrator has priority in appointment, the burden rests on the applicant to show that there are special circumstances that make it necessary or convenient to pass him/her over;

(5)  Friction or hostility between an executor/administrator and a beneficiary alone, without more, is of itself not a good reason for removing the executor/administrator. No corrupt or improper motive is to be imputed against the executor even if mutual hostility, without more, is established. However, if the hostility is grounded on the mode of administration, then it is a factor that cannot be ignored;

(6)  The expeditious and economical administration of the estate is always one of the objects that the court keeps in mind. Therefore, if by reason of the hostility, the executor/administrator is rendered unfit to perform his/her duties as executor/administrator, he/she may be removed. Such inability to perform his/her duties as executor/administrator may be proved if it can be demonstrated that he/she would, say, by reason of the hostility, (a) administer the estate in a manner not in accordance with the law or (b) obstruct the due administration of the estate. The court may also pass over the executor if the breakdown of relation has caused or has the potential to cause difficulty in the administration of the estate;

(7)  The overriding consideration is the interest and welfare of the beneficiaries, and the question is what is necessary or required for the due and proper administration of the estate;

(8)  The Court may also have regard to the size of the estate, nature of the assets, background, education, training and experience of the remaining and substituted personal representative;

(9)  It is not every mistake or neglect of duty, or inaccuracy or misconduct, which will induce a court to remove a personal representative and, a fortiori, to pass over a potential one. The acts or omission must be: “such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity”; but on the other hand, it is not necessary to establish specific wrongdoing, misconduct or fault for the purpose of passing over/removal, but they are relevant considerations if established;

(10)  The Court must always be very cautious and sparing in the exercise of the power to remove an executor or administrator;

(11)  When deciding on the identity of the administrator, the Court would usually give preference to the candidate with the support of the majority of the beneficiaries. This consideration usually arises in the context of a dispute between persons entitled to administration to the same degree under the Non-Contentious Probate Rules. Hence, the starting point must be the general practice that the choice of the majority would be preferred by the Court.

25.In the present case, I agree that the it is clear that the defendant should be “passed over” and the plaintiff should be appointed in her place because:

(1)  The plaintiff has the full support of the other 2 daughters of the Deceased;

(2)  The plaintiff has now even got the support of the defendant who has indicated through her previous solicitors that she had no objection for the plaintiff to be appointed administratrix of the Deceased’s estate;

(3)  It is also evident that the defendant is not a suitable person to be entrusted with the role of administratrix because she is in a position of conflict, given the potential claim against her by the Estate in relation to the distributed assets of the Estate.

26.I therefore enter judgment summarily in favour of the plaintiff.

E.  DISPOSITION

27.I make the following orders:

(1)  The Grant of Probate of the Will of the late Ho Hin Leung made on 5 May 2016 granted to the defendant under HCAG 4290/2022 issued on 11 May 2022 be revoked.

(2)  The plaintiff be appointed as the administratrix of the estate of the late Ho Hin Leung. A grant of Letters of Administration of the Estate be issued to the plaintiff as administratrix upon compliance with all the usual procedures required by the Registrar of the Probate Registry.

(3)  All the assets of the Estate be vested in the plaintiff as administratrix of the Estate upon the issuance of the fresh grant of the Letters of Administration to the plaintiff.

(4)  The defendant do give a full and proper inventory and account on oath (1) of all the assets and monies of the Estate and their substitute and/or proceeds; and (2) of the defendant’s dealings therewith (if any) upon the Grant of Probate up to the date hereof; and all properties and benefits or their present equivalent acquired or derived therefrom (if any), within 28 days from the date hereof.

(5)  The defendant do take all necessary steps to deliver up the assets, monies and proceeds in her hands representing the assets, monies and proceeds of the Estate (including all the title deeds and documents in relation thereto in her hands) to the plaintiff to be held for the Estate (if any), within 28 days from the date hereof.

(6)  The defendant do pay the plaintiff as administratrix of the Estate all sums found due on the taking of such accounts (if any).

F.  COSTS

28.The defendant shall personally bear the plaintiff’s costs of the action, including the costs of this application and all costs reserved. Such costs are summarily assessed at $340,000, and shall be paid by the defendant on or before 29 September 2025.

Mr Lai Chun Ho, instructed by King & Wood Mallesons, for the plaintiff

The defendant was unrepresented and did not appear