Re Li King Yi

HCCV 5439/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 5439 OF 1994

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Coram : Master J. Wong in Chambers  

Dates of Hearing/Appointment: 14 November 2005 and 13 December 2005

Date of Decision : 17 January 2006

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D E C I S I O N

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Background

1.The Deceased died intestate on 7 September 1991 in Hong Kong.  He was a bachelor, leaving no issue but six surviving brothers and sisters entitling to share in his estate in the sum of $625,710.82.

2.There were some disputes among the siblings as to who should be the administrators.  Application for grant under HCCV 6664/92 was filed but withdrawn later.  Various caveats were filed, and eventually, under Caveat no. 11 of 1993, it was ordered by Master Bokhary (as she then was) that two sisters LI MAN, AMY (“Amy”) and CHANG HELENA nee LI CHING KUN (“Helena”) did have leave to apply jointly for the grant.

3.HCCV 5439/1994 was filed on 1 September 1994 by the solicitors for Amy and Helena, Messrs. Edward C.T. Wong & Co. (“ECTW”).  Requisitions were raised and answered.  However, the matter has been left in abeyance since 1998.

4.On 15 April 2005, a notice of change of solicitors was filed by Messrs. Kenneth C.C. Man & Co. (“KCCM”) to replace ECTW as solicitors for Helena.

The Applications

5.KCCM then issued a summons on 3 November 2005 seeking under rule 25(2) of the Non-Contentious Probate Rules (Cap. 10A) (“NCPR”) for an order that Helena be at liberty to apply on her own for the grant on the estate of the Deceased.  It was said by the solicitor for Helena that:

“ 6. On 14th April 2005, we wrote to ECTW to request copies of documents to enable our further handling of the matter.  On 27th April 2005, ECTW replied that the matter had been transferred to Messrs. Li, Wong & Lam (“LWL”).

7. On 7th May 2005, we wrote to LWL to request copies of documents to enable our further handling of the matter.  LWL did not reply to our letter and on 2nd June 2005 we sent another letter to LWL.

8. ……

9. I was informed by Helena that she had lost contact with Li Man Amy, who is her natural sister, for a few years so we have stressed in our letters to ECTW and LWL that Helena wanted to discuss with Li Man Amy the future conduct of this matter.  ECTW in its letter dated 6th June 2005 mentioned that LWL had been trying to contact Li Man Amy but in vain.  LWL never replied as to whether they had been able to contact Li Man Amy at all, nor were they able to reply substantially on the various points we raised in the correspondence.

10. I note that the matter has been dragging on for some time.  Helena is now 79 years old and I was informed that she is now in ill health.  I was also informed by Helena that a number of the beneficiaries in the deceased’s estate has now deceased.  ECTW and LWL’s reply all indicated that they have lost contact with Li Man Amy.  With Helena’s advance age and ill health, it is imperative that the application for administration should not be further delayed.  It is for the reasons aforesaid that I request this Court to grant leave to Helena to apply for the administration of the deceased’s estate singly.”

6.The summons was served on the present solicitors for Amy, Messrs. Li Wong & Lam (“LWL”) who, on 11 November 2005, issued an application under O.67 r.6 of the Rules of the High Court.

7.The parties appeared before me on 14 November 2005 and I adjourned the matter to allow me some time to call for other relevant files.

8.The applications then came back before me as the 5th matter to be dealt with on the Non-Contentious Probate List.  Mr. R. Chan of KCCM acted for Helena and Ms. Au-Yeung of LWL represented Amy.

9.I allowed Ms. Au-Yeung’s application upon satisfaction that she was unable to contact Amy any more.  Nonetheless, as it would take time to comply with other formalities, LWL were still solicitors on record for Amy when Mr. Chan’s summons was heard.  Ms. Au-Yeung confirmed with me that she had no instructions to consent or oppose the summons of Mr. Chan.  She would leave the matter in the good hands of this Court.

10.Having heard further from Mr. Chan, I reserved my decision to be delivered.  I now do so.

Decision

11.Upon thoughts, I will allow Mr. Chan’s summons in principle.

12.Helena is now facing a deadlock situation.  Before this Court, there is no evidence as to the present status and whereabouts of Amy.  At one stage in the past, she asked this Court to allow her to take part in the administration of the Deceased’s estate.  However, she apparently has not pursued the matter for some years.  The matter should not be left indefinitely in abeyance.

13.Rule 25(1) NCPR allows:

“A grant may be made to any person entitled thereto without notice to any other persons entitled in the same degree.”

Hence, but for the aforesaid caveats and order made by Master Bokhary (also she then was), all siblings in fact enjoy the same priority or degree as per rule 21(1)(iv) NCPR.

14.The application for grant was filed more than ten years ago, but has not yet completed.  Helena is almost 80.  A number of the beneficiaries might have passed away after the Deceased, by now.  Requisitions were raised as to the particulars of the family but this court is still waiting for the answers.  It would be extremely undesirable for the matter to be dragged on in present status.

Order and Directions

15.Having said that, as a matter of procedure, I believe that it might be a good idea for me to make an order to vary the said order of under Caveat no. 11 of 1993 because it is the very origin allowing Amy and Helena to make the application for grant.  In short, circumstances have been changed since then and it is no longer appropriate to rely on Amy as one of the joint applicants.

16.Upon the oral application by Mr. Chan, and with no objection from Ms. Au-Yeung, I order that:

(a) Paragraph 1 of the said order be varied to the effect that Helena be at liberty to apply on her own for the grant of administration for the estate of the Deceased with costs be paid out from the said estate.

(b) A sealed copy order of the variation made by me shall be served on all the beneficiaries of the estate to inform them of the development in the matter.

(c) Leave be granted to withdraw HCCV 5439/1994.

(d) Priority be granted to process the new application to be filed by Helena.

Mr. R. Chan of Messrs. Kenneth C. C. Man & Co. for Madam Chang Helena

Ms. J. Au-Yeung of Messrs. Li Wong & Lam for Madam Li Man, Amy