Pow Shiu Mei and Others v. Pham Thi Minh Hanh

HCMP 629/2025

[2026] HKCFI 2987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 629 OF 2025

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D E C I S I O N

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1.The Plaintiffs and the Defendant are the four executrices of the estate (“Estate”) of the late Madam Pow Siu Kwan Elizabeth (“Deceased”) appointed under the Deceased’s last will. In this action, the Plaintiffs seek to remove the Defendant as one of the executrices of the Estate.

A.  PLAINTIFFS’ GROUNDS

2.The Deceased passed away in Hong Kong on 8 October 2022 with her last will dated 17 August 2022 (“Will”). Probate was granted to the Plaintiffs and the Defendant on 17 October 2023.  

3.Under the Will, after payment of all the relevant expenses, the residuary estate (“Residuary Estate”) is to be dealt with in this manner:

(1)  Under clauses 4(B)(i) of the Will, the executrices are to make provision for the Deceased’s grandnephew (“Grandnephew”), who is a minor and is currently 16 years old, for a maximum of HK$100,000 per year for his living and education expenses until he reaches the age of 23, or until he completes his full-time education, whicheve r is later.

(2)  Under clause 4(B)(ii) of the Will, the executrices are to make a specific gift of HK$200,000 to each of 5 individuals, namely the Plaintiffs, the Defendant and another friend of the Deceased.

(3)  Under clause 4(B)(iii) of the Will, after the steps in sub‑clauses (B)(i) and (B)(ii) are carried out, the remainder of the Residuary Estate (“Remainder”) is to be divided into 3 parts with:

(a)  1 part comprising 10% of the Remainder to be used for annual gatherings (“Annual Gatherings”) to be held on certain dates after the Deceased’s death;

(b)  1 part comprising 70% of the Remainder to be given to specific individuals in specified proportions;

(c)  1 part comprising 20% of the Remainder to be given to specific institutions and organisations in specified proportions.

4.It is common ground that the executrices have paid all the relevant expenses. However, the distribution of the Residuary Estate cannot be fully effected because of the disagreements amongst the Plaintiffs and the Defendant. The Plaintiffs contend that there is deadlock amongst the executrices in relation to the administration of the Residuary Estate, particularly in relation to (1) the provision of living and education expenses for the Grandnephew and (2) the Annual Gatherings. It is the Plaintiffs’ case that the breakdown of relationship between them and the Defendant has become so serious such that there is now a standstill in the administration of the Estate.

5.It is important to mention that the Plaintiffs and the Defendant have already tried to resolve their differences in the administration of the Estate through mediation in January 2025. Upon conclusion of the mediation, a deed was signed amongst the parties in relation to, amongst other things, the provision for the Grandnephew. Nonetheless, further disputes arose between the Plaintiffs and the Defendant in the course of implementing the terms of the mediation.

6.There is also no dispute that the 3 Plaintiffs share a harmonious relationship as executrices, and that the disputes which have arisen were between the Plaintiffs on the one hand and the Defendant on the other.

7.In this action, both parties have raised numerous allegations of personal nature against each other in the affirmation evidence. Emotive language has been used on both sides. I will return to the appropriateness of such evidence later. As was made clear in the Plaintiffs’ skeleton submissions, their main ground to support their removal application is that there has been a breakdown of the executrices’ relationship which has led to a standstill in the administration of the Estate for over 2.5 years since the grant of probate.

B.  RELEVANT LEGAL PRINCIPLES

8.A personal representative may be removed by the court under the power conferred by s.33(3) of the Probate and Administration Ordinance (Cap 10) (“PAO”), which provides:

“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.”

9.In an application to remove a personal representative, the court applies similar principles to those applicable in the case of removal of a trustee: Thomas & Agnes Carvel Foundation v Carvel [2008] Ch 395 at [44] (Lewison J).

10.Because the overriding considerations under s.33(3) of the PAO are the due and proper administration of the estate and the interests of the beneficiaries, it is not necessary to establish wrongdoing or fault by an executor to obtain his removal.[1] The learned editors of Williams, Mortimer & Sunnucks: Executors, Administrators and Probate (22^nd ed, 2023) at §53-20 state:

“... if the administration has come to a standstill because relations between the personal representatives have broken down, or relations between the representatives and the beneficiaries have broken down, the court will ordinarily remove the personal representatives, and appoint new ones to enable the administration to be completed. It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal. If, for whatever reason, (such as clash of personalities, or the lack of confidence in the personal representative by the beneficiaries, even if unjustified) it has become impossible or difficult for the administration to be completed by an existing personal representative, then an order for his removal will usually be made.”

This passage was approved in Angus v Emmott [2010] WTLR 531 at [108] (DHCJ Richard Snowden QC), and, in part, in Ho Suen Chang v Ho Hin Cheung [2020] HKCFI 1620 at [28] (Au Yeung J).

11.Friction or hostility between personal representatives (or between a personal representative and a beneficiary) is not of itself a reason for the removal. However, where the friction or hostility is grounded on the mode in which the estate is being administered, where it is likely to hinder the due and proper administration of the estate or prejudice the interests of the beneficiaries, the court may conclude that it is necessary for the personal representative to be removed. See Letterstedt v Broers (1884) 9 App Cas 371 at 389 (Lord Blackburn); Kershaw v Micklethwaite [2010] EWHC 506 (Ch) at [11] (Newey J).

12.“The fact that the testator has chosen the executors in question is capable of being relevant, for no other reasons than that the testator may be expected to have had knowledge of the characters, attitudes and relationships involved, although if circumstances have changed radically since the appointment, that would be a countervailing consideration.”: see Williams, Mortimer & Sunnucks at §53-20; Lau Tung Hoi Kent v Lau Tung Kuen [2022] HKCFI 1921 at [33]-[34] (Recorder Pao SC).

13.Ultimately, the court must exercise its judgment to assess whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries. The question of whether the continuation of office is likely to prove detrimental to the proper administration of the estate or the beneficiaries’ interest must be determined by reference to the particular facts and circumstances of the case. See Tsang Wing Kwai v Tsang Wing Fai (No 2) [2019] 1 HKLRD 1300 at [27] (Lam V-P); Re Savile’s Estate [2015] BPIR 450 at [83] (Patten LJ).

C.  WHETHER DEFENDANT SHOULD BE REMOVED

14.In this application, it seems to me that the question for the court is whether the Defendant’s removal from office is required for the due and proper administration of the estate and the interests of the beneficiaries.

15.Having applied the above principles to the evidence before the court, I would answer the question in the affirmative. There are two reasons for coming to this conclusion.

16.First, given the lack of progress on the distribution of the Residuary Estate for a lengthy period of time, which was caused entirely by the inability to reach consensus between the Plaintiffs and the Defendant, it is necessary to break the deadlock to ensure due and proper administration of the remainder of the Estate.

(1)  Probate of the Estate was granted over 2.5 years ago on 17 October 2023. However, the bulk of the Residuary Estate has still not been administered because of the disagreements between the Plaintiffs and the Defendant. To their credit, the Plaintiffs and the Defendant attempted mediation to resolve their differences on 13 January 2025. Nonetheless, they had further disagreements over how certain terms of their settlement should be carried out.

(2)  One example relates to the living and education expenses of the Grandnephew. After the mediation, it was agreed between the Plaintiffs and the Defendant that the Defendant would arrange a meeting with the Grandnephew together with the Plaintiffs (a) to inform him of his entitlement under the Will and (b) to get to know more about the Grandnephew in order to assess how much money from the Estate should be set aside for his benefit. The Defendant considered that the Grandnephew’s grandfather and mother should also attend this meeting. However, the Plaintiffs had concerns about conducting the meeting with the Grandnephew’s family members because they believe that the Grandnephew’s guardian was in debt and have doubt about her character. The Plaintiffs therefore preferred to have the executrices’ meeting with the Grandnephew alone. The parties were not able to resolve their differences and the meeting with the Grandnephew was never held.

(3)  Another example which the Plaintiffs and the Defendant are still unable to resolve relates to the Annual Gatherings. This was not an item discussed at the mediation. Under the Will, the executrices were obliged to organise Annual Gatherings in accordance with the terms of the Will. Nonetheless, in her affirmation to oppose the present removal application, the Defendant stated that her “responsibility was limited to jointly ensuring with the Plaintiffs that the necessary allocation was made to cover the expenses of the Annual Gatherings”. This presumably explains why the Defendant never took an active part in organising the Annual Gatherings.

(4)  It is unnecessary to refer to other examples which caused the distrust to arise between the Plaintiffs and the Defendant in the administration of the Estate. I note that the Defendant does not deny the existence of various disagreements with the Plaintiffs, or the contention that there is a breakdown of the relationship between the Plaintiffs and the Defendant resulting in a lack of progress in the administration of the Residuary Estate.

(5)  I am unable to see how the serious differences and the intense hostility between the Plaintiffs and the Defendant can be resolved any time soon.

(6)  The Defendant disputes the Plaintiffs’ description of the administration of estate being at a “standstill” and submits that the administration is only being “halted”. Leaving aside the niceties between the two terms, it is an undisputed fact that there has been virtually no progress on the administration of the Residuary Estate since the mediation. The Defendant further suggests that the differences with the Plaintiffs can be resolved if the Plaintiffs simply agree to her terms, or if the Plaintiffs make an application to court for directions. The former suggestion is hardly a solution to resolve the differences with the Plaintiffs. As to the latter suggestion, it is not the court’s function to give directions on how disputes and differences amongst executrices should be resolved. I do not believe the Defendant’s suggestions are practical.

(7)  Given that the Plaintiffs form the majority of the executrices, and that the Defendant has always been the minority voice when there were differences in opinion, it seems to me that requiring the 4 executrices to continue to administer the Estate is likely to prove detrimental to the proper administration of the estate and the beneficiaries’ interest.

(8)  In coming to this view, I have not lost sight of the wish of the Deceased to have the Defendant appointed as one of the executrices of her Estate. Nonetheless, the substantial disagreements between the Plaintiffs and the Defendant that arose in the course of the administration of the Estate was not something that the Deceased could have reasonably foreseen, and would, for the reasons that I have given, justify the removal of the Defendant.

17.My second reason for believing that the Defendant’s removal from office is required for the due and proper administration of the estate and the interests of the beneficiaries is this. Apart from the Grandnephew, there are other residual legatees who are entitled to benefit from the Residuary Estate. These other residual legatees are not strictly beneficiaries until the administration is complete: Wong Suet Foon Shirly v Collector of Stamp Revenue [2021] 3 HKLRD 862 at [25]-[28]. Nonetheless, it would be detrimental to the interest of these residual legatees as a whole for distribution to be further delayed, where such delay is caused by the deadlock between the Plaintiffs and the Defendant.

(1)  It is common ground that certain residual legatees have been requesting updates on the progress and the date of distribution of the Estate. One residual legatee has already passed away before receiving any distribution from the Estate. There are other residual legatees who are of advanced age.

(2)  In particular, one of the residual legatees wrote an email to the Plaintiffs’ former solicitors on 18 October 2024 to say that he was “planning to take legal action against the executors due to inaction or incapability of estate management”.

(3)  I disagree with the Defendant’s submission that the evidence from some of the residual legatees suffers from deficiencies. It is an objective fact that some of the residual legatees were eager to know when distribution would be made, and that one of them intimated that he intended to take legal action against the executrices in relation to the administration of the estate. Contrary to the Defendant’s suggestion, I do not believe the Plaintiffs were required to have obtained the views of the majority residual legatees in relation to the Defendant’s removal before making the application. As has been made clear in the authorities, the overriding considerations under s.33(3) of the PAO are the due and proper administration of the estate and the interests of the beneficiaries. This is an objective exercise to be conducted by the court having regard to all the relevant circumstances of the particular case.

(4)  I note that the residual legatees in the present case have not been joined in these proceedings. Paragraph 45 of Practice Directions 20.2 states that “residuary beneficiaries (unless numerous) should be joined as a party, unless their written consent to the application is available”. In this case, there are numerous residual legatees (over 30 in numbers) and this was the Plaintiffs’ reason for not joining all the residuary legatees in the proceedings. Further, the Plaintiffs’ solicitors have written to the residual legatees regarding the present removal application and have indicated that their views would be welcome. More importantly, in view of the nature of the ground of removal, I do not believe the court’s exercise of discretion would be undermined if it does not have the views of all the residual legatees regarding the removal. On the joinder issue, I have also borne in mind what Lam V-P said in Tsang Wing Kwai v Tsang Wing Fai (No 2) (above) at [47] to [50].

18.The Defendant also submits that it was oppressive on the part of the Plaintiffs to issue the current application shortly after the mediation was concluded without allowing the Defendant to work out their differences. As mentioned earlier, the Plaintiffs and the Defendant had disagreement over the terms of the settlement after the mediation in relation to the Grandnephew’s provision. This led to the issue of the letter from the Plaintiffs’ solicitors to the Defendant on 14 April 2025 referring, amongst other things, to the disagreements in relation to the proposed meeting with the Grandnephew and the pursuit of further legal action. Even prior to the mediation, the Plaintiffs’ solicitors had already intimated on more than one occasion that they would consider making an application for removal. In these circumstances, I do not agree with the Defendant that the Plaintiffs’ taking out of the present application on 25 April 2025 was oppressive and unreasonable.

19.For all the reasons given, it is my view that the Defendant’s continuation in office is likely to prove detrimental to the proper administration of the estate and the interests of the beneficiaries. I would exercise my power to remove the Defendant as an executrix of the Estate. It is unnecessary to consider the Plaintiffs’ alternative proposal to appoint a solicitor as an executor in place of the Defendant. In my view, the administration of this Estate is not so complex that it is necessary for a solicitor to be appointed as an additional executor. Further, this is not a very large estate. The appointment of a solicitor as an additional executor will inevitably incur additional costs for the Estate.

20.I make an order that the Defendant be removed as executrix of the Estate. I will now hear the parties on costs.

[Submissions on costs]

21.I consider the Defendant’s resistance to removal to be unreasonable. I therefore make an order that the costs of these proceedings (including all reserved costs) are to be paid by the Defendant to the Plaintiffs to be summarily assessed. Such costs are to be borne by the Defendant personally and not out of the Estate.

[Submissions on summary assessment]

22.Before I summarily assess the Plaintiffs’ costs, it is necessary for me to say a few words about the contents of the affirmations in these proceedings. For present purposes, I focus on those filed on behalf of the Plaintiffs. Such affirmations are lengthy and contain many irrelevant factual matters that did not feature in counsel’s submissions advanced on behalf of the Plaintiffs. They also contain highly personal attacks with emotive and accusatory language, as well as comments and arguments, which in my view have no place in any written statement of fact such as an affidavit. This is particularly so when the present removal application is not based on wrongdoing or fault.

23.In Re Estate of Loo Che Chin [2013] 2 HKLRD 739, Poon J (as he then was) gave guidance to the legal profession on what to avoid when preparing evidence. At [33]-[34], his Lordship said:

“Occasionally, the parties allow their hostility to spill over into the evidence, which is emotionally charged, bordering on mud-slinging for pure prejudice. That is wholly unwarranted. Emotional language often blurs the parties’ focus. Trivial or irrelevant matters only confuse the real issues … I hope in the future, the parties and their legal advisers would firmly bear in mind these judicial comments and what I have just said in preparing the evidence.”

24.In this case, it is clear that the Plaintiffs’ legal advisers failed to pay heed to his Lordship’s guidance when the relevant affirmations were prepared. Although the Plaintiffs needed to set out in the affirmations such facts which resulted in their breakdown of relationship, it was entirely inappropriate to include in them irrelevant matters and contents drafted in emotive and inflammatory language.

25.To reflect the inappropriateness of the affirmations filed on behalf of the Plaintiffs, I reduce the Plaintiffs’ solicitors’ costs in Items C1 and D1 of the Statement of Costs in relation to the preparation of such affirmations by 50%. I also reduce the costs in Items B2, C2, D2, D4 and D6 for being excessive. Pursuant to paragraph 13 of the Practice Directions 14.3, I further disallow the Plaintiffs’ costs in drafting the Statement of Costs.

26.I summarily assess the Plaintiffs’ costs at HK$300,000.

27.As to the costs which are not recoverable from the Defendant as a result of the summary assessment, such costs are not to be paid out of the Estate.

Ms Jacqueline K K Chan, instructed by K.B. Chau & Co., for the 1^st to 3^rd Plaintiffs

Mr Warwick Tam, instructed by Boase, Cohen & Collins, for the Defendant