Chan Chun Wah v. Patrick Chan Chun Wai and Another

HCMP001893/1987

1N THE HIGH COURT OF HONG KONG

HEADNOTE

Proceedings were instituted by a beneficiary under his mother's will and his father's intestacy, claiming a vesting order under section 70(2) of the Probate and Administration Ordinance, although the personal representatives had not assented to the vesting in the beneficiary of the properties to which the vesting order claimed related.

HELD     that no such proceedings could be brought before assent, and that the proceedings ought to be reconstituted as an administration action.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Godfrey in Chambers

Date of Hearing: 10th November 1987

Date of Delivery of Judgment: 10th November 1987

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JUDGMENT

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1. This is an originating summons claiming a vesting order. The brief facts (few others are in evidence) are as follows. Chan Kwok King ("the father") died intestate on 23rd June 1976. His wife Ho Woon Yin ("the mother") died on 29th October 1976, leaving a will dated 19th August 1976, which was proved on 17th January 1979. Letters of Administration to the estate of Chan Kwok King were granted on 18th February 1981.

2. The first Defendant, Patrick Chan Chun Wai, is the executor of the mother's will. The first Defendant and the second Defendant, Chan Chun Kuen, are the administrators of the father's estate.

3. The Plaintiff is Chan Chun Wah. He is a brother of the first Defendant and the second Defendant. He was named in the mother's will as one of her executors, but he renounced probate.

4. The mother's will does not contain any specific devise.

5. The estates of the father and the mother include a number of properties. The personal representatives have not disposed of these properties; nor have they assented to the vesting of any of these properties in any of the beneficiaries in specie.

6. The Plaintiff has called on the personal representatives to dispose of the properties and distribute the proceeds among the beneficiaries, as he is entitled to do.

7. However, the present proceedings, under which the Plaintiff asks for a vesting order under section 70(2) of the Probate and Administration Ordinance, Cap. 10, are misconceived.

8. Not until there has been an assent can it be said with certainty whether or not a particular asset will be needed for the payment of debts or other liabilities; and until these have been discharged, it cannot be said what assets there will be in the residuary estate. Accordingly, the general rule is that no beneficiary can assert that he has any legal or equitable interest in any of the assets which are still unadministered; for the whole right of property in them is vested in the personal representatives. The beneficiary has merely a right to require the deceased's estate to be duly administered. Apart from specific gifts, the rights of the beneficiaries are accordingly protected, not by conferring equitable interests upon them, but by the control exercised by the Court, whether under a will or an intestacy, to secure the due administration of the assets in the interests of the beneficiaries and or other persons concerned. (For these propositions, see Snell's Principles of Equity, 28th Edition (1982), at PP. 337, 338.)

9. The proper way, then, for the Plaintiff to bring his grievance before the Court, is by the institution of an administration action (there is a useful precedent in Atkin's Court Forms, 2nd Edition, 1980 issue, form 38). The provisions of section 70(2) of the Probate and Administration Ordinance, which are similar to the provisions of section 43(2) of the English Administration of Estate Act 1925, are not appropriate. These provisions apply so as to enable any person who, as against the personal representative, claims possession or a conveyance or an assent, to apply to the Court, which may make the necessary vesting or other order. The reference to an "assent" here is to be construed as reference to a written assent, to be made in favour of a specific devisee, or in favour of one in whose favour the personal representatives have already informally assented. Since the incorrect belief that the provisions of section 70(2) of the Probate and Administration Ordinance may be used by a beneficiary before assent appears to be not uncommon, I have thought it right to state the correct position in this judgment, for the guidance of the profession, and to adjourn this hearing for the proceedings to be reconstituted as an administration action.

Representation:

Mr. Peter Cheung instructed by Messrs. Poon, Yeung & Li for the Plaintiff.

1st Defendant in person, absent.

2nd Defendant in person, absent.