Re Cynthia Wai-man Fang

HCAG 5519/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 5519 OF 2005

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Coram : Before Master J. Wong in Chambers

Date of Appointment  : 27 January 2006

Date of Decision : 7 March 2006

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D E C I S I O N

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Introduction

1.When a solicitor has been retained to apply for a grant, the very first question he should consider is probably: how the deceased is to be described in the estate duty clearance papers and/or the affidavit to be filed with the Probate Registry.  Mr. H. Tsoi of Messrs. Herbert Tsoi & Partners brought such question to be decided by this Court.

Background

2.The Deceased came from a wealthy family in Hong Kong.  She was born locally and went to study in the States.  She married to Professor Fang and settled down there some 50 years ago.  On 19 February 1999, the Deceased died testate in the US.  In her Will, she named her husband as her personal representative.

3.By a power of attorney dated 22 May 2003, the husband nominated the applicants to apply for the grant to administer the estate of the Deceased in Hong Kong.

4.On 31 May 2005, the Estate Duty Office of the Inland Revenue Department issued a certificate of receipt of estate duty for the estate of the Deceased.  The applicants then filed their application with the Probate Registry on 14 June 2005.

5.It is noted that, in all the above papers, the Deceased was described in 4 ways.  The applicants deposed in their joint affidavit (1) filed herein on 14 June 2005 that:

“4.	(a)	The true name of the deceased was CYNTHIA WAI-MAN FANG.
	(b)	The said deceased made and executed the said Will in the name of CYNTHIA W. FANG.
	(c)	The said deceased’s name of FANG CYNTHIA WAI MAN (李慧文) was registered in her Hong Kong Identity Card No. P434825(0).
	(d)	The said deceased held the following assets in the name of LI WAI MAN (李慧汶): -
		(i)    Shares in The Bank of East Asia, Limited;
		(ii)   Shares in Hing Wai Investment Company Limited; and
		(iii)  Deceased’s interest in the unadministered estate of Li Fook (or Fuk) Ho (or Hoo), predeceased.”

6.In relation to the reference of the Deceased’s name as per her HKID card, on 25 October 2005, the officer raised requisition no. 5:

“5.  In view of para. 4(c) of (1), please advise by letter what is the reason for inclusion of alias Fang Cynthia Wai Man (i.e. name in the HKID) in the grant to be issued and what is/are difficulties the applicant may encounter if such alias be omitted from the grant to be issued.”

7.Mr. Tsoi replied by letter of 8 December 2005 that:

“Although the deceased’s name of Li Wai Man (李慧汶) was, at that time, stated as one of the beneficiaries in the application for grant of representation under the estate of the late Li Fook (or Fuk) Ho (or Hoo) predeceased, however, in order to identify the identity of the deceased in accordance with her Identity Card in relation to her interest in the said estate, it is desirable that the alias Fang Cynthia Wai Man (i.e. name in the HKID) of the deceased be included in the grant to be issued.”

8.On 19 January 2006, the officer disagreed with Mr. Tsoi and replied by requisition no. 7:

“7.  Req. no. 5 not sufficiently answered.  Since your above letter has confirmed that the deceased name in the estate of late Li Fook (or Fuk) Ho (or Hoo) is Li Wai Man (李慧汶), it appears that her interest in the said estate is identified by reference to Li Wai Man   (李慧汶).  Please explain what is the difficulty in administration of the deceased’s estate if the alias of Fang Cynthia Wai Man (李慧文) be deleted.”

9.Mr. Tsoi then decided to take up the matter with me by fixing an appointment under the Non-Contentious Probate List.  Upon hearing from him on 27 January 2006, I reserved my decision to be delivered.

Ruling

10.Now, upon consideration of the matter, I have decided that requisition nos. 5 and 7 are to be waived in the circumstances and the reference of the Deceased’s name as per her HKID Card may be retained in the grant to be issued.

Reasons

11.To start with, rule 7 of the Non-Contentious Probate Rules (Cap. 10A) sets out that:

“7.  Grant in additional name

(1)  Subject to paragraph (2), where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.

(2)  If the name of the deceased is in accordance with the International Code for Chinese names this name shall be accepted as being the correct name of the deceased.”

12.Further, as usual, useful reference can be located in Tristram and Coote’s Probate Practice, 29th Edition, at paragraphs 4.125 (page 133) and 4.134 (page 134):

“Name of testator. Alias

4.125    A grant should always issue in the true name of the deceased.  The inclusion of one or more alternative names (known as alias names) may be necessary because the deceased held assets in a name other than the true full name, or for some other sufficient reason.

‘Where it is sought to describe the deceased in a grant by some name in addition to his true name, the applicant shall depose to the true name of the deceased and shall specify some part of the estate which was held in the other name, or give any other reason for the inclusion of the other name in the grant.’ (r.9.)”

“Alias name required in grant

4.134    In case, whether of testacy or intestacy, where the deceased held property standing in a name other than his true full name, an alias may be included in the grant to facilitate the administration.  The oath should depose specifically to the true name and include a statement that the deceased held property in the alternative name or names: at least one item of property in each alternative name must be specified.  If the inclusion of an alias is desired for some other reason, this must be deposed to.”

13.Mr. Tsoi and I also agreed that the Deceased should be described exactly in the grant, no more and no less.  As a well-established practice, the true name first, and then followed by the alias(es) which is/are necessary to facilitate the administration of the estate, including usually those of the Deceased used to hold assets.

14.Bearing in mind the above, as a matter of principle, since the applicants deposed that the true name of the Deceased was the one contained in her US identification documents, rather than that appearing on her HKID card, the name “FANG CYNTHIA WAI MAN  (李慧文)” could only be included in the grant as an alias.  Further, the Deceased did not hold any assets under this name and as such, the same should not be allowed to be included in the grant in its usual way.  Having said that, is there “any other reason” for the inclusion?  Mr. Tsoi raised three.  However, with respect, I do not agree with any of them.

15.First, Mr. Tsoi reiterated the reason stated in his letter of 8 December 2005.  However, the inclusion of the name as per the HKID card, without more, cannot be a sufficient reason.  Such “name” will not facilitate the administration of the estate.

16.Second, it was submitted that:

“Although no assets of the deceased in Hong Kong was held under the name of Fang Cynthia Wai Man, it is safeguard to include this alias of the deceased in the grant to be issued.  It would avoid amendment to the names of the deceased if later (after the grant was issued) it is found that property was held under the alias of the deceased (since both the HKID and the Passport of the deceased were registered in name of Fang Cynthia Wai Man).”

(page 1 of the skeleton submission of Mr. Tsoi)

After thoughts, I decline to accept the above as a good reason.  If Mr. Tsoi could satisfy this Court that the Deceased is going to inherit some assets by reference to the Deceased’s name in her HKID card, in my view, that constitutes a good ground because, without such alias, the grantees will not be able to administer that part of the estate.  Nonetheless, it is probably asking for too much by insertion of an alias to cater for an unknown contingency.

17.Third and finally, Mr. Tsoi also attempted to persuade me that the Chinese reference of “李慧文” was necessary because the Deceased was generally known to the family members as “李慧

Waiver of the requisitions?

18.Though as a matter of principle, I take a different view from Mr. Tsoi on the inclusion of the name of the Deceased as per her HKID card, should I waive the relevant requisitions in the circumstances?  Mr. Tsoi told me that:

“Mr. Sheng Chung Fang also known as Sheng C. Fang, the lawful husband of the deceased (i.e. the donor of the Power of Attorney) is an old man of nearly 90 years, it is uneasy for him to have the title of the names of the deceased in the Power of Attorney be amended in the presence of a Notary Public in the U.S.A. (if required)

The applicants do not wish to bother the deponent Madam Yu Mo Kit who is 72 years of age to re-sworn [sic. re-swear] the Affidavit of Identity if amendment to the title of the names of the deceased is required.”

(as per page 2 of the skeleton submission of Mr. Tsoi)

Further, the heading of the estate duty clearance papers is also to be amended so that the same corresponds with that in the grant.  Hence, no doubt, it requires quite some efforts on the part of the applicants and Mr. Tsoi to put right the matter.

19.I have no doubt that our NCPR are made for the better carrying out of the matters relating to application for grant and administration.  Each rule usually serves a particular purpose.  Mr. Tsoi agreed with me that rule 7 NCPR regulates the number(s) of the description of the Deceased in the grant.  It cannot be “less” or that the administrator will be unable to administer the estate because a third party might have doubt as to whether a particular property (if held in different name than that on the grant) belongs to the Deceased.  It cannot also be “more”.  What is the point of including a “name” of the Deceased if it is unnecessary for the purpose of administration?  Would it “assist” the grantee to administer part of the estate of the Deceased not known to the authority?

20.Applying the underlying principle of rule 7 NCPR to our case, by asking to include the name of the Deceased as per her HKID card, are the applicants trying to do something “bad”?  I do not consider there is any evidence before me justifying such inference. The risk is negligible.

21.Probably, with the benefit of hindsight, Mr. Tsoi would not insist on the inclusion if he knew that it could cause so much trouble.  Further or alternatively, as a matter of evidence, if the applicants would depose that the “true name” of the Deceased was the one contained in her HKID card (as in most of the cases in my experience), the inclusion of other aliases, including “Cynthia Wai-Man Fang” (in the present case, the true name of the Deceased as contained in her death certificate and in the US grant) will not trigger any requisition at all.

Rules are tools and not masters

22.Rules are certainly made to be observed, and not to be ignored.  However, rules are there as our tools and not the masters.  As such, irregularities can always be waived under our legal system. Similar provisions are often included in the legislation to empower the Court to do so, for example, the Bankruptcy Rules, the Winding-up Rules and the Rules of the High Court.  Although express provision cannot be located in NCPR, I take the view that rule 5(1) thereof is wide enough to allow this Court to exercise its discretion to waive technical non-compliance of the rules on good grounds, especially when no one is suffered or prejudiced by so doing.

“(1)  The Registrar shall not allow any grant to issue until all inquiries which he may see fit (emphasis added) to make have been answered to his satisfaction.”

23.As I have indicated, it is true that rule 7 NCPR has not been complied with.  However, the effort to be spent in amending all the papers far exceeds the achievement in putting the matter on the “right track”.  I therefore see fit, on a without-creating-precedent basis, to waive requisition nos. 5 and 7 in the circumstances.

24.Since this application has been dragged on for some time and the applicants as well as Professor Fang are all senior citizens, priority is hereby granted to process the application from today.

Mr. H. Tsoi of Messrs. Herbert Tsoi & Partners for the applicants.