Re Chung Loi Ho

HCAG 849/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 849 OF 2009

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Coram : Before Master Levy in Chambers

Date of Hearing   :   9 March 2010

Date of Decision  :   9 March 2010

Date of Handing Down Reason: 10 March 2010

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REASONS FOR DECISION

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The Appointment Hearing

1.This is another shoddy application.

2.The solicitor for the Applicant issued a Notice of Appointment to deal with the requisitions set out in paragraph 8 below.

3.The Applicant is allegedly the son of the Deceased intestate. According to the affirmation in support of the application (“the Oath”), he applies for a grant of letters of administration in the capacity of the lawful and natural son of the Deceased, and one of the persons entitled to share in the estate of the Deceased.

4.The value of the estate is only in the sum of about $51,000, consisting of monies in bank accounts.

5.Whilst it is averred in the Oath that he is the lawful and natural son of the Deceased, the Applicant however in paragraph 2 of the Oath, deposes that the Deceased was never married to any person, and that the Applicant’s “nature (sic) mother” has never married to the Deceased.

6.The assertion of being a lawful and natural son cannot sit together with the Applicant’s allegation that his parents were not married because if his parents were never married, he could not be described as the “lawful” son.

7.Further, the allegation that his mother was never married to the Deceased would mean that the mother (if surviving) could not be a surviving widow, and would not be entitled to the estate.

8.Hence, requisitions were raised asking the Applicant to file an affidavit from the mother to prove her relationship with the Deceased, and evidence to prove the Applicant’s relationship with the Deceased.

9.At the hearing attended by the solicitor together with the Applicant, the solicitor was not able to adduce any further evidence for the purpose of answering the requisitions raised. The information unfolded from the court’s inquiry during the hearing however discloses that the Applicant’s parents were in fact married in Mainland China, and that the mother is still alive but allegedly suffering from dementia.

10.The result of the inquiry clearly shows that the Applicant is neither entitled to make the application as he has failed to clear off the prior right of the mother nor is he entitled to the estate for the value of the estate is less than $500,000 (to which amount a surviving spouse has the full entitlement).

11.Hence, to be able to make the application, the Applicant would need to either obtain the renunciation from the mother, or provide medical evidence to prove the mother’s mental incapacity so that an application under rule 33, Non-Contentious Probate Rules (Cap.10) may be made.

12.The solicitor was asked to explain for the misleading evidence adduced in the Oath. The explanation given was that the Applicant was unable to provide concrete evidence of the marriage when he took instructions from him, and there was also miscommunication with his client.

13.I do not find the explanation acceptable.

14.An oath (affidavit in support of the application) is the most important document in an application for grant. Any deliberate falsehood contained in an oath would attract criminal liability. It is therefore of paramount importance that when taking instructions from a client, a solicitor has the utmost duty to clarify any ambiguous information given by his client, and ensure that all the information contained in an oath is true and accurate.

15.In the present case, I was told that the Applicant had in fact informed the solicitor that the parents were already married in Mainland China. Just because the Applicant could not provide any documentary proof or any other source of evidence to prove the parents’ marriage is not a sufficient justification for alleging an otherwise lawful union as a relationship of cohabitation. The solicitor should have taken instructions to find out whether the parents were married by customary marriage in China, which marriage does not usually have any documentary proof.

16.In order to safeguard the interest of a surviving spouse, when an application is made by a child of a deceased and when it is alleged that the parents were not married, we would invariably require evidence (as in this case) from the surviving parent to give direct evidence to confirm the allegation.

17.In the instant case, although I would stop short of making a finding that the solicitor (as well as the Applicant) have deliberately concealed the true relationship of the parents, I am however satisfied that he has been negligent in having failed to clarify from his client about the parents’ actual relationship and to verify his client’s entitlement before lodging the application.

18.Hence, had no application been made by the solicitor to withdraw the application, I would be inclined to dismiss it forthwith. As the solicitor has applied for withdrawal, I granted leave to withdraw.

19.In light of the grossly misleading nature of the application, I was minded to deprive the solicitor of his costs.

20.The solicitor did not wish to make any submissions to show cause, and accepted that he has not been careful with the application and agreed not to charge any costs in the application.

21.Hence, I order that the solicitor is not allowed to charge any costs from his client, and any costs that have been received must be refunded to the Applicant.

22.I was told that the funeral expenses were in the region of $100,000. As the total amount of the estate is smaller than the funeral expenses, the solicitor may wish to advise his client that it may be much more economical for him to apply for summary administration.

Mr. A. Cheung of Messrs. Cheung & Yip for Applicant.