Ykc and Another v. Ymym, The Sole Executor of the Estate of Ykl, Deceased and Another

FCMP 244/2024

[2025] HKFC 160

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO 244 OF 2024

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BETWEEN

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JUDGMENT

( Application to apply for financial provision out of time
Ex Tempore Judgment )

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This Application

1.This Application is for financial provision under Cap 481 (the “Ordinance”) out of time as the Applicant’s Originating Summons contravenes Section 6 of the Ordinance.

2.The Deceased passed away XX April 2021.

3.Grant was obtained on 12 October 2021, 6 months from then would be April 2022.

4.The current application was made on 18 November 2024, it was 2 years and 7 months out of time.

Background

5.A1 and A2 are the sons of the deceased by his first wife.

6.R1 is the daughter of the deceased by his second wife R2.

7.Deceased made a Will in November 2001 naming R1 as the executor and giving everything to R2.

8.This includes a property in SLY (the “Property”), which Ground Floor is inhabited by A1 and A2 with their families in separate units.

9.A1 and A2 are now seeks ownership of the Ground Floor of the Property under section 3 (vi) of the Ordinance.

Legal Principles

10.The legal principles are not in dispute: both parties quote the Judgement of PFCJ Bebe Chu in LZX v WYL (provision: family and dependants) [2012] 5 HKLRD 29.

11.The following are the undisputed principles in considering an out of time application under the Ordinance:

a. The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.

b. The onus is on the applicant to show sufficient grounds for the granting of permission to apply out of time. This burden is no triviality.

c. Consideration must be given to consider whether an applicant has acted promptly and the circumstances in which an applicant applies for an extension of time after the expiry of the time limit.

d. It is relevant whether or not any negotiations had been commenced within the time limit.

e. It is relevant whether or not the estate had already been distributed.

f. It is relevant whether, if permission to extend time is not granted, the applicant would have any form of redress against anyone else.

g. Whether the applicant has shown an arguable case under the Ordinance.

12.The issues to be considered are:

(1) Whether the Applicants have acted promptly in taking out their application?

(2) Do the Applicants have an arguable case?

Whether the Applicants have acted promptly in taking out their application

13.The Applicants are 2 years and 7 months out of time.

14.In the present application, I need to consider what was done or not done between passing of the deceased and the date of the Originating Summons.

Applicants’ case

15.The Applicants says:

- They were not informed of the administration of the estate

- They were not informed of the vesting of the Property on R2

- They thought that the Respondents would not want litigation, therefore did not take action initially

- That their education level is limited, and therefore there is difficulty in appreciating (i) vesting of the property and (ii) their rights under the Ordinance

- There has been deliberate concealment of administration and vesting

- They have made a mistake with their argument of “Adverse Possession”

- Their applications to Legal Aid were refused

- That there is no prejudice as parties and the Property are still here, the Respondents still occupy the Property

16.At the hearing, counsel for the Applicants confirms that there has been no action on the part of the Applicants

- Between Rs’ lawyers CMK first letter of 6 Feb 2023 to the time they wrote to the Village Head on 18 December 2023

- Between the time after writing to the Village head to CMK’s second letter of 22 January 2024

- And from Hastings’ letter of 30 January 2024 to the Originating Summons in November 2024.

My findings on this issue

17.I do not find the delay in this case is acceptable.

18.Respondents says that the Applicants:

- Had been idle from the time of passing of the deceased

- Had been idle from the time they received the letter from CMK dated 6 February 2023 asking for vacant possession by December 2023

- Chose to write to a village leader and not to CMK to resolve the issue

- Had argued adverse possession which their counsels now concede in their submission that it was a mistake on their part

19.I agree with the Respondents’ case.

20.There has been a certain degree of complacency on the Applicants’ part in doing nothing after death of their father.

21.When asked at the hearing, the Applicants’ counsel acknowledges that there is no law or case law that gives the Applicants a right to be informed and the Respondent’s counsel argues that there is no such obligation as they are not beneficiaries. I find that the Applicants have fail to establish why they need to be informed; although I could venture to comprehend, that to a certain extent, they may not feel that anything is amiss until the letter from CMK on 6 February 2023.

22.But with the first letter from CMK on 6 February 2023, it should have raised cause for concern when they were told that (1) R2 is the registered owner of the property and (2) they have been asked to vacate the property by 31 December 2023. To this, the Applicants only said that they thought R2 would not want to escalate “intimate family disputes to the court”, and therefore they did not seek legal advice or make investigation on the deceased’s estate.

23.The Applicants did nothing until 10 months later and 12 days before the deadline imposed by the letter demanding vacant possession. They chose to write to the Village leader, and not to the Respondents’ lawyers CMK; claiming that they have a right to live in the Property as the descendants, and that they have no intention of leaving.

24.With the second letter of CMK dated 22 January 2024 demanding vacant possession for the second time and for Applicants to leave by 6 February 2024, the Applicants embarked on an “adverse possession” argument via their lawyers Hastings on 30 January 2024. The Applicant’s counsel now says it is a mistake in his submission. It is not clear when the Applicants realised it was a mistake, the Respondent’s counsel argues that they have not retracted their position. It is however clear that while they have resorted to legal advice then, no appropriate action was undertaken.

25.The Respondents took out an action in the District Court for Vacant possession in August 2024, the Applicants waited another 3 more months because taking out the current application.

Negotiation

26.When asked in Court, the Applicants’ counsel says that the only evidence of negotiation is the letter that they wrote to the village leader asking to resolve this matter; nothing arose from that letter, and no other evidence has been put forward documenting any other efforts at negotiation.

Legal Advice

27.Other than saying that the R2 probably would not want a legal dispute, no reason was given as to why legal advice was not sought earlier, it is my finding that a reasonable time for this to be done should be when CMK sent out their 1^st letter demanding vacant possession back in February 2023.

28.According to the Applicants’ counsel, Hastings was engaged to prepare the letter of January 2024; and thereafter nothing happened until the Respondent took out the DCMP action for vacant possession, and Hastings was again engaged to take up the case in late September / early October when Legal Aid refused the Applicants’ representation in September 2024.

29.I do not accept that education level (or lack thereof) is a viable reason for the Applicants’ inaction in these circumstances. Applicants have demonstrated that they know to, and know how to seek out assistance from legal representative, but they failed to act until the eviction deadline were approaching.

Conclusion on this Issue

30.I am not of the view that the Applicants have acted promptly at all in these proceedings, their periods of inaction are unacceptable, and their explanation for the delay unconvincing.

Do the Applicants have an arguable case

31.Turning to the issue of arguable case.

32.The law is trite that in a case of this nature, the Applicants have the onus on putting their case forward that they have an arguable case.

33.In setting out the people who have locus to make an application under the Ordinance, Section 3 (vi) reads:

“An adult child of the deceased who immediately before death of the deceased was being maintained wholly and substantially, by the deceased”

34.The Respondents argue that the Applicants have not proved that they are “wholly and substantially” being maintained.

35.The only factual situation put forward by the Applicants is that they are residing in the G/F of the property, there is no other evidence that they are “maintained” otherwise. I also sought confirmation from their counsel at the hearing and it is confirmed by him that the provision of free accommodation is the only basis of maintenance by the deceased to them.

36.The Respondents also argue that (1) The value of the provision is that of the rental value of the property, on this they say, relying on the Applicants’ own evidence, that the rental of the respective units are $5,000 and (2) That to take this $5,000, and considering it in the context of A1’s and A2’s income, being $30,000 and $20,000 – $23,000 respectively, it could not be said that they are “wholly and substantially maintained”

37.At the hearing, and when asked, the Applicants’ counsel made no further argument on this point.

38.Furthermore, the Respondents argue that A1 and A2 both have landed properties of their own, and that there has been a lack of information from their evidence as to the value of the properties, how the property is being used, whether there is income from their properties, information on the mortgage taken out, and how the mortgage has been serviced.

39.I agree that the lack of information on the Applicant’s assets is a clear failure in their case. From the land searches provided, it is clear that A1 and A2 are registered owners of their properties, and they have not argued otherwise. Yet they say that they would seek leave to file supplemental affidavit after they have “obtain more information”. But it has been 5 months after their last affidavits, and no application has been made. It is also incomprehensible why such information is not easily accessible to the Applicants as they are registered owners.

40.Argument was raised as to the Applicants’ right to take out the application when they have their own assets, here the Applicants rely on the case of SLY v DL [2023] HKFC 44, but this case is distinguishable on the basis that the applicant therein was the deceased’s wife and her application was not limited to the extent of the financial dependency but one of notional divorce standard.

Conclusion on this Issue

41.It is my finding that the Applicants have failed in their onus to put forward an arguable case.

Order

42.I therefore dismiss paragraph 1 of the Applicants’ Originating Summons of 18 November 2024 asking to make their application under the Ordinance out of time. Paragraph 2 of the application therefore falls away.

Costs

43.I see no reason why Costs should not follow the event. I therefore order Costs be to the Respondent, this to be a Costs Order nisi, to be made absolute in 14 days hereof; to be taxed if not agreed, with certificate for one counsel from each side.

Mr Anthony L.K. Ko and Mr Andy C.Y. Kwok instructed by Hastings & Co. for the 1^st and the 2^nd Applicants

Mr Stony Chan instructed by Christine M. Koo & Ip, Solicitors & Notaries LLP for the 1^st and the 2^nd Respondents