Re Kkc

HCMP 3843/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3843 OF 1998

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BETWEEN

Re: KKC

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Before: Hon Lam J in Chambers

Date of Ex-parte Application: 7 December 2005

Date of Decision: 28 December 2005

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D E C I S I O N

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1.On 18 September 1998, Bank of East Asia (Trustees) Limited was appointed as committee for the estate of KKC [“the Committee”] by the order of Deputy Judge Chung (as he then was) under Part II of the Mental Health Ordinance [“MHO”]. KKC passed away on 23 July 2005. Before the court was informed about her demise, on the ex parte application of the Committee, I gave certain directions for settling the medical expenses of KKC on 26 July 2005. The order containing those directions has not been perfected.

2.The court is informed that KKC had made a will on 9 May 1980. After the death of KKC, the solicitors acting for the surviving executors requested the Committee to continue to manage the estate pending grant of probate.

3.At the same time, another solicitors firm wrote to the Committee putting forward another will of KKC dated 17 May 2001 under which different persons were named as executors. That will was apparently made after the appointment of committee. Request was made on behalf of the executors named thereunder for accounts of the estate.

4.The validity of the second will is disputed by the surviving executors under the first will.

5.Faced with such conflicts, the Committee applied by an affirmation of 5 December 2005 for directions to empower it to continue to manage the estate pending the grant of probate or further order of the court and to release information relating to the estate for the purposes of estate duty clearance.

6.The application is misconceived. Upon the death of a patient, there are a number of consequences. First, the committee is automatically discharged under Section 27(4) of the MHO. Second, the court can no longer exercise any Part II jurisdiction in respect of the estate. The only residual matters that the court may give directions are in respect of the final account of the estate, remuneration of the committee and transfer and delivery of funds belonging to the estate to the proper authority (c.f. Para.5-021 of Heywood & Massey, Court of Protection Practice). The Committee has included a final account in the affirmation of 5 December 2005.

7.In a situation like the present one, given the dispute regarding competing wills, the matter has to be dealt with by the court in the exercise of its probate jurisdiction. As KKC died after 15 July 2005, the estate duty aspect is affected by the Revenue (Abolition of Estate Duty) Ordinance 2005 (see for instance the new Section 20A).

8.In order to avoid intermeddling, the Committee should freeze the account of the estate pending directions from the probate court.

9.If any party wishes to apply for inspection of the final account, he or she should apply to this court for leave to do so instead of demanding the same from the Committee.

10.In view of the prior death of KKC, I revoke my directions of 26 July 2005.

11.I grant leave to the Committee to supply a copy of this Decision to the solicitors for the competing executors.  Further, I propose to release this Decision for publication. If any party has any comment on such course, he should write to this court within 7 days.

Ex-parte Application by Messrs. Tsang, Chan & Woo for the Committee