Yim Wai Kee, The Administrator of the Estate of Yim Ho Alias Yim Ho Pui Otherwise Known As Im Ho Pui v. Yim Shiu Yuen, Otherwise Known As Yim Siu Yun

HCMP 1724/2025

[2026] HKCFI 5640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1724 OF 2025

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D E C I S I O N

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Introduction

1.By Originating Summons dated 30 September 2025 (“OS”), the Plaintiff (“P”) seeks inter alia the following orders:

(1)  An Order that P be passed over as Administrator of the Estate of Mr Yim Ho (“the Estate”) and replaced by Mr Bob Yan Xianming (“Yan”), principal of Messrs Yan Lawyers (“YL”) as the independent administrator (“Independent Administrator”) of the Estate pursuant to s.36 of the Probate and Administration Ordinance, Cap. 10 (“the Ordinance”);

(2)  An Order that the 1^st, 2^nd and 3^rd Defendants (collectively, “Ds”) do deliver up and return to the Independent Administrator all assets and monies being the assets and monies of the Estate within 14 days thereafter; 

(3)  A Vesting Order in favour of the Independent Administrator; and

(4)  Upon filing all documents requested by the Probate Registry, a grant of Letters of Administration be made in favour of the Independent Administrator.

2.It is not disputed that an independent professional administrator should be appointed in place of P. The main issue in contention is whether Yan or Ds’ proposed candidate, Madam Daphne Ng-Quinn Tak Yee (“Ng-Quinn”) of Messrs Yu Sun Yau Mak & Lawyers (“YSYML”), should be appointed. Ds also contest whether P’s other relief (see §1(2) and (3) above (“Other Relief”)) should be granted.

3.Pursuant to the Order of Au-Yeung J dated 29 April 2026, written submissions were filed by the parties for paper disposal of the OS.

Brief Background

4.The late Mr Yim Ho (“the Deceased”) passed away in 1977 intestate.

5.By an Order made by consent in CACV 423/2023 dated 16 May 2025, the parties to these present proceedings accepted that the Estate is held for 6 beneficiaries in equal shares: (1) Leung Tung (as the Deceased’s lawful concubine); (2) Yim Chi Yuen; (3) Yim Shiu Yuen, (4) Yim Shui Yuen; (5) Yim Kit Yuen and (6) Yim Wai Kee (all as the Deceased’s natural and lawful sons). It was further agreed that if agreement could not be reached on the appointment of an independent administrator of the Estate, parties shall take out an application in the Court of First Instance regarding the removal and/or appointment of administrator of the Estate.

6.The Estate essentially consists of 6 pieces of land (“Estate’s Land”) with 5 buildings having been erected thereon (1 of the building was erected on 2 pieces of land). Various units of the buildings that are currently occupied are either occupied by Ds and their family or let out to tenants by Ds.

Applicable Principles

7.Section 36 of the Ordinance provides that:

“[…] 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.”

8.In Re Estate of Lo Chi Chong (Deceased) [2025] 1 HKLRD 225 H Au-Yeung J at §29 distilled the applicable principles from the authorities cited therein at footnote 4 as follows:

(1)  The words “necessary or convenient” in s.36 of the Ordinance 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/she 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; and

(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.

Discussion and Disposition

9.As mentioned, there is no real dispute that it is convenient and necessary to pass over P who had been appointed as administrator of the Estate and a professional administrator should be appointed in P’s place. The question is who should be appointed as professional administrator.

10.The starting point will usually be the choice of the majority. However, Ds represent 3 out of the 6 beneficiaries so strictly speaking Ng-Quinn is not the choice of the majority. Neither is Yan supported by the majority of the beneficiaries even if one accepts P’s case (not accepted by Ds) that he, his brother Yim Kit Yuen and them as representative (or the only issues) of Leung Tung, agree to Yan’s appointment.

11.I then turn to Ds’ objections to Yan being appointed and whether Ng-Quinn is to be preferred.

12.Firstly, it was said that Yan is less experienced than Ng-Quinn. Yan was admitted as a solicitor in Hong Kong in 2013 and established YL in 2016. According to his CV, he has been practising heavily in the area of probate and inheritance, acted as administrator of intestate estate and as legal experts in Hong Kong law on inheritance matters. On the other hand, Ng-Quinn was admitted as a solicitor in Hong Kong in 1985 and is an accredited mediator since 2013. She has practised in a number of large reputable solicitors’ firms as well as worked in the Lands Department as Senior Solicitor. Since 2014, she acted as a consultant of YSYML. According to her updated CV, her areas of practice include probate and administration. P submitted that no particulars were given of her experience as administrator. However, in the updated CV, it was stated:

“PROBATE AND ADMINISTRATION

-Numerous Contested Probate Cases involved for the past two years (i.e. HCAP 34/2024. HCAP 13/2025, HCMP 629/2025)

-Numerous Administration of Estate involving several landed properties & many beneficiaries.”

13.I have no reason to doubt that both Yan (despite not being as experienced and from a smaller firm) and Ng-Quinn have sufficient experience and competence to administer the Estate. I do not consider too much can be made from the typo in Yan’s CV when referring to the Non-Contentious Probate Rules being Cap. 29A rather than Cap. 10A but I can understand Ds’ professed lack of confidence in Yan as a result of the failure to proofread his CV[1]. I can also see that being a mediator, Ng-Quinn may have experience to adopt a less confrontational stance and hopefully help de-escalate the previous grievance and mistrust between parties if she were appointed administrator so she might have the slight edge over Yan in this regard.

14.Secondly, although both Yan and Ng-Quinn were prepared to cap their fees at 1% of the Estate’s total value[2], it was submitted Yan had made specific exclusions for contentious third party and beneficiary claims and applications for directions. Furthermore, it was also submitted that with the wider staffing levels at YSYML, work not requiring Ng-Quinn’s seniority could be delegated to more junior staff which would reduce costs. Comparing the hourly rates of Ng-Quinn and her more junior staff with that of Yan’s and his more junior staff, it does seem that the fees of YSYML are slightly lower and given that Yan proposed to carry out most of the work personally, it may be Ng-Quinn and her team will charge the Estate less but I accept that at this stage one cannot be certain who will charge less. For completeness, I reject the suggestion that somehow the fee reduction of YSYML “can imply an abnormal connection between Ds and their nominated independent administrator, which may affect or call into question the independence of the independent administrator[3].

15.Thirdly, Ds raised the issue that Yan may be biased. However, there is nothing to this complaint which was based merely on YL’s letter dated 16 July 2025, stating that their scope of work would include: “Dealing with any claim by any creditor, beneficiary or third party, and, if necessary, taking out legal proceedings against them to recover assets that belong to the Estate”. I cannot read that as Yan (as opposed to P) “would or had contemplated to take possession of or evict any occupants” on the Estate’s Land. If Yan, even though proposed by P, was appointed as administrator, he would be formally engaged by all beneficiaries and be accountable to all. There is no grounded basis to suggest that Yan would not discharge his duty as administrator independently and impartially.

16.In all, considering all the materials placed before this court and the submissions made, on balance, I think it is appropriate to appoint Ng-Quinn as the Independent Administratrix in place of P.

17.I believe the following orders can and should be made:

(1)  The Letters of Administration of the Estate granted to P be revoked;

(2)  P be passed over and removed as administrator of the Estate and replaced by Daphne Ng-Quinn Tak Yee as the Independent Administratrix of the Estate under s.36 of the Ordinance; and

(3)  A fresh grant of Letters of Administration of the Estate be issued to Daphne Ng-Quinn Tak Yee upon compliance with the usual procedures required by the Registrar of the Probate Registry.

18.As for the Other Relief, the basis for seeking the orders was never canvassed in P’s supporting affirmation. In P’s Affirmation, it was stated to be filed in support of his application for appointment of independent administrator and his choice of nomination was explained. Furthermore, whilst in D1’s Affirmation, it was stated inter alia that there is no need for the Estate’s administrator to take physical possession and vacant possession of Estate’s Land and there was mention of the proceedings commenced by P to take possession of certain of lots in Estate’s Land (in HCMP 111/2019) and the Other Relief should be dismissed, P’s 2^nd Affirmation did not respond to any of these matters.

19.Only in one short paragraph in P’s first set of written submissions, P asserted that these reliefs are “standard and not unreasonable given Ds’ continued wrongful hold of the properties, to protect the Estate and/or enable the administrator to carry out their duty”.

20.Whilst several cases were cited in the footnote to P’s Written Submissions, with respect, I do not consider those cases can assist P. In Re Estate of Cheung Fung Yan [2024] HKCFI 469, the orders made at §38 by DHCJ H Au-Yeung (as he then was) were agreed by the parties subject to the court’s decision on the identity of the independent administrator. As for Re Estate of Shih Chia Ying (unrep) HCMP 1891/2011, 5 November 2012, it is not apparent from the decision of DHCJ Lok (as he then was) that the consequential orders including the delivery up of the assets of the Estate and vesting orders were contested as the main contest appears to be the choice of the substituted administrators. As for Re Estate of Man Hing Kwai [2026] HKCFI 577, again it is not apparent from the decision of DHCJ Kent Yee whether the order that assets and properties of the estate be vested in the substitute administrator for her administration was contested. Finally, as for Re Estate of Tsang Yuk Hing [2025] HKCFI 1061, at §5 it was recorded that the 1^st defendant, who never entered appearance before the hearing before H Au-Yeung J but appeared in person had indicated that he had no objection to the relief claimed.

21.In P’s Reply Submissions, again the Other Relief was dealt with in one paragraph repeating that this court has jurisdiction to grant a vesting order by relying on the cases cited and asserting that those order are necessary for the due and proper administration of the Estate.

22.Without having filed any evidence in these proceedings how the continued occupation of various lots of the Estate’s Land by Ds  and/or letting out of other lots by Ds were wrongful (which parties accept Ds had a beneficial right to albeit together with all the other beneficiaries) and why all assets and monies of the Estate should be paid to the administrator and vesting orders should be made for the proper administration of the Estate, there is clearly no basis to grant the Other Relief. In so far as the Independent Administratrix requires further orders or directions to properly discharge her duties to administer the Estate, she can make any necessary application to the court supported by an affirmation.

23.Accordingly, I would refuse to make any orders in terms of §§(2) and (3) of the OS.

24.As for costs, given P’s failure to obtain all the relief sought but as I do not believe much time and costs were incurred in seeking the relief in §§(2)-(3) of OS (as mentioned the Other Relief was not dealt with in the two affirmations filed by P and only briefly in submissions), and despite Ds have succeeded in persuading this court to accept their nomination of administrator but I do not take the view that P’s proposed candidate was wholly unsuitable and thus improperly put forward, I am of the view that a fair order is that only a proportion of the costs of and occasioned by these proceedings should be paid out of the Estate. Looking at the matter in the round, P should personally pay 30% of the costs of and occasioned by the OS and the remaining 70% be paid out of the Estate, to be taxed if not agreed.

Ms Sakinah Sat, instructed by Messrs Choi, Yung & Co, for the Plaintiff

Mr Jonathan Mak, instructed by Messrs Tang, Leung, Li & Tsang, for the 1^st to 3^rd Defendants