Re Lai Shun

HCMP 439/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 439 OF 2011

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Before: Deputy High Court Judge L. Chan in Chambers

Date of Judgment: 27 May 2011

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J U D G M E N T

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1.This is an application by Madam Chan Wong Choi (陳旺彩), the administratrix of the estate of Lai Shun, deceased, for revocation of the letters of administration granted to Madam Chan on 10 April 2002 under section 33 of the Probate and Administration Ordinance, Cap. 10 (“PAO”). By virtue of sections 3 and 5 of the PAO, an application for revocation of grant can only be dealt with by a judge of the High Court.

2.The deceased was Madam Chan’s husband.  He passed away on 24 November 2001.  Madam Chan applied for grant of letters of administration on 25 March 2002.  She thought the deceased had died intestate as she could not find any will left by him.  Since she thought the deceased had died intestate, she therefore believed that she had the highest priority to a grant of administration under Rule 21 of the Non-contentious Probate Rules, Cap. 10A (“NCPR”). 

3.In preparation for her application for grant of letters of administration, she reported to the Estate Duty Office that the deceased had only left HK$37,377.83 in his estate and nothing else.  Letters of administration were duly granted to her on 10 April 2002.

4.The deceased was the owner of the flat at 1/F, 255 Ki Lung Street, Shamshuipo, Kowloon.  It was the home of the family.  Madam Chan had not reported this to the Estate Duty Office.  She explained in an affirmation filed in this application that she then thought that the deceased had already transferred the flat to their son, Lai Cheong Wing, as the deceased had told her a few months before his death that he would do so.  Hence, she thought that the flat had already been transferred to the son and she did not inform the Estate Duty Office about it.  This flat was therefore not included in the schedule of the property.

5.However, in about July 2010, Lai Cheong Wing discovered from his belongings a will made by the deceased on 4 December 2000 which made him the sole beneficiary of the flat.  The will did not deal with the other assets of the deceased and the estate is partially intestate. 

6.Madam Chan explained in an affirmation in this application why she was not aware of the will until it was discovered by her son in July 2010.  She said the will was not kept with her husband’s papers but was with the son’s belongings which she did not search for respect of the son’s privacy.  In November 2001, her son was pursuing his studies in the mainland.  He only came back then for the deceased’s funeral and Madam Chan had not asked him about the deceased belongings. The will was only discovered in July 2010 when the son returned home during the summer vacation and tidied up his belongings.

7.On the basis of these facts, the letters of administration ought not to have been granted to Madam Chan.  The son Lai Cheong Wing, aged 28, and the daughter Lai Ka Yan, aged 25, have consented to this application for revocation.

8.Regarding the HK$37,377.83, Madam Chan said she had already used it for the education of her son and daughter.

9.Consideration has been given on whether Madam Chan should be asked to return this sum of money to the estate.  I think this is only a matter for the administrator of the estate to be appointed under Rule 19 of the NCPR to consider under section 67 of the PAO.  It should not affect the outcome of this application.  In any case, the facts deposed to by Madam Chan show that she had, as the administratrix and in good faith, paid the sum of HK$37,377.83 to herself as the beneficiary.  She should therefore be protected by section 57(1) of the PAO in having effected the payment.  She is also the beneficiary who is entitled to this sum in full under section 4(3) of the Intestates’ Estates Ordinance, Cap.73.  I therefore see no cause for the future administrator to pursue her for this sum.

10.In the premises, I order that the grant of letters of administration of the estate of the deceased to Madam Chan on 10 April 2002 be revoked.

Messrs William Sin & So, for the Applicant