Re Yip Yuen Kam

HCMP1809/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1809 OF 2008

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Before:  Hon Lam J in Chambers

Date of Hearing:  8 October 2008

Date of Judgment:  8 October 2008

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J U D G M E N T

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1.I have before me this morning an application by the Administratrix of the Estate of the late Yeh Lien Teh, seeking an order that the letters of administration be revoked on the ground that, subsequent to the grant of the letters of administration, it was discovered that the deceased had actually made a will before his death. 

2.At the time of the application for letters of administration, the Administratrix said she was not aware of the will because it was a will kept by her younger sister and her husband and they had not informed her about the will.

3.Under that will, the deceased gave his interest and right in respect of two immoveable properties in Hong Kong to two of his sons respectively.  The will was kept by the son-in-law who worked in Indonesia and he only returned to Hong Kong occasionally. 

4.When the Administratrix applied for the grant of letters of administration, she was acting without the benefit of legal representation. 

5.In support of her application, she had to make an affirmation deposing to the fact that, since the death of the deceased, she had made a diligent search to see whether the deceased had made a will, but she could not find any will.  Further, she has to file an affirmation deposing to the assets and liabilities of the estate.  One of the items she has to specifically set out is whether the deceased had any immoveable properties.  In the inventory of assets and liabilities attached to her affirmation of 16 February 2008, the Administratrix said that the deceased did not have any immovable properties.

6.It was on the basis of this affirmation from the Administratrix that letters of administration were granted by the court to her in HCAG1645/2008 on 25 February 2008. 

7.In my judgment, even though the application was made without benefit of legal advice, it behoves an applicant for a grant, whether by way of probate or letters of administration, to exercise due diligence in the making of affirmation in support of his or her application for a grant.  Therefore, if an applicant comes to the Probate Registry to apply for grant on the basis that the deceased died intestate, a duty falls upon such applicant to make all necessary inquiries within his or her power to ensure that the deceased had not made any will prior to his death.  If there were other relatives, it is not enough for an applicant to make a search amongst the belongings of the deceased by himself or herself and find no will.  In my view, it is the duty of such applicant to make inquiries with those other relatives as well to find out whether the deceased had made a will.

8.I appreciate there could be cases where, notwithstanding such inquiries having been made, a will was not discovered at the time of the application but emerged subsequently.  However, in the present case, on the materials before me, I have no explanation from the Applicant with regard to the steps she took in terms of inquiries with her siblings about the existence or non-existence of the will.

9.Another defect in the affirmation filed in support of the application for grant is that there was no reference to any immovable properties of the deceased.  On the evidence now before me, it seems that the Applicant should have been aware of the existence of the two immoveable properties which the deceased disposed of by his will.  Even though she had no intention to deal with those immovable properties by obtaining the grant, as I have tried to demonstrate, the requirement at the time when she applied for grant is that she had to disclose all the properties of the deceased.  It might be that if she had addressed her mind to these immovable properties, she would have found out about the will earlier on. 

10.I cannot emphasise more about the importance of an applicant applying for grant to exercise due diligence and care in terms of the information contained in his or her supporting affirmation.  It is a serious matter to make a mistake in these sorts of documents because the court relies on the content of these documents to decide whether the grant should or should not be made and to whom the grant should be made.  Any mistake in those documents will have to be explained, to say the least.  This is the requirement of the law.

11.Mr Ravenscroft indicated to me that the Applicant is going to file a further supplemental affirmation to deal with these matters and I will therefore adjourn the application and give her 14 days to file the supplemental affirmation.

12.In order to save costs, I will see whether I can dispose of the matters on paper after reading the supplemental affirmation.  In other words, unless the court directs, there will not be a need for a further hearing. 

Mr David Ravenscroft, of David Ravenscroft & Co., for the Applicant