Re Cheng Ki Sang

HCMP 2542/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2542 OF 2008

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Before: Hon Lam J in Chambers

Date of Application by way of originating summons: 17 December 2008

Date of Judgment: 20 February 2009

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J U D G M E N T

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1.Revocation of a grant of probate or letters of administration can be contentious as well as non-contentious.  In England, if such an application is contentious, it would be dealt with in Chancery Division whilst application of a non-contentious nature will be dealt with in the Family Division by a district judge or a registrar, see Halsbury’s Laws of England, 4^th Edn, 2000 Re-issue, Vol.17(2) para.256.

2.In Hong Kong, contentious application for revocation comes within the scope of Order 76 and has to be proceeded by way of a probate action.  But there is no clear provision in the statutory rules (including subsidiary legislation) as to how non-contentious application for revocation should be made.  Unlike the position in England where Rule 41 of the English Non-Contentious Probate Rules 1987 conferred power on district judge and registrar to revoke a grant with the consent of the person to whom the grant was made or in exceptional circumstances, Section 5(3) of our Probate and Administration Ordinance expressly excludes the power of the Registrar to deal with an application for revocation.

3.Hence, in Hong Kong, even though an application for revocation is non-contentious, it has to come before a judge.  The following practice has come to be adopted in Hong Kong over the years: the applicant, usually the person to whom the grant was made, will take out an ex parte originating summons by way of miscellaneous proceedings seeking an order for revocation.

4.Ex parte originating summons is to be used when no party is to be served with the proceedings.  An application is non-contentious when the grantee is the applicant or consents to revocation, see Williams, Mortimer and Sunnucks, Executors, Administrators & Probate (2008) para.27-32.  If the grantee is the applicant, no other party needs to be joined or served.  Thus, it can be proceeded by ex parte originating summons.

5.Though it is not mandatory, it is good practice for the grantee to canvass the views of those who might be affected by revocation before making the application and inform the court if any of them raise objection to the revocation.  The court can then decide whether it is necessary to direct notice be given to such person(s) (c.f. Atkin’s Court Forms, 2^nd Edn., 2006 Issue, Vol.29(1), p.243-4, para.41).

6.In a case where the grantee is not the applicant, he or she should be joined as a party.  The matter can no longer be pursued by way of ex parte originating summons.  However, if the grantee consents to the application, the matter can be dealt with by way of originating summons with a consent summons filed together with the evidence in support.  The court can dispose of the matter on papers if it deems fit.

7.In cases where it is not clear whether the grantee will consent to the application, the applicant has two options,

(a)  Treat the matter as contentious business and commence a probate action under Order 76;

(b)  Issue an ordinary originating summons and seek directions from the court for the purpose of ascertaining the position of the grantee.  If the grantee indicates that the application will be opposed, directions should be sought for converting the proceedings into an action as if it is begun by writ under Order 76.  In a case where the opposition is clearly frivolous, the matter can be disposed of at a hearing of the originating summons, see Atkin, ibid., p.224 para.23.

8.In Re the Estate of Yeh Lien Teh (deceased) HCMP 1809 of 2008, 8 Oct 2008, I have explained the evidential requirement on the failure to locate the will when the original application was made for a grant on the basis of intestacy.

9.In addition, the court will usually require a personal representative to state whether he or she has taken steps in administration since the grant has been issued.  If such steps have been taken, the court may require an account to be furnished by the personal representative in addition to the revocation of the grant.

10.Further, the court will generally require the original grant to be lodged with the court when it makes an order of revocation though the failure to do so will not prevent the court from making an order of revocation.  In case of a failure to do so, the personal representative is expected to explain why he or she cannot lodge the original grant.

11.In the present case, based on information already supplied by the Applicant (who was appointed as administratrix under a grant issued in December 2003), I am satisfied that the application is non-contentious.

12.By reason of the discovery of the will of the deceased subsequently, I am also satisfied that the 2003 grant should be revoked under Section 33(1) of the Probate and Administration Ordinance.

13.However, the Applicant has not complied with paras.9 and 10 above.  I shall therefore adjourn the matter for 30 days to enable her to attend to those matters.  Upon her compliance, this court shall process the application on papers.

Messrs Ko & Chow, for the Applicant