Re Li (or Lee) Wing Chun (or Chuen)

HCEA 41/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

Coram : Before Master Levy in Chambers

Date of Hearing : 31 May 2011

Date of Decision : 7 June 2011

_______________

D E C I S I O N

_______________

(I)  THE APPLICATION

1.The Applicant filed an ex parte application for an order (according to the last paragraph of the supporting affirmation) “under s. 36 of the Probate and Administration Ordinance for a grant of letters of administration (with the Will annexed) de bonis non of the unadministered estate of the Deceased… as the legal personal representative of Wai Lai Chun, the sole residuary legatee and devisee named in the will”.

(II)  THE FACTUAL BACKGROUND

2.In order to understand the facts of this application, I should refer very briefly to the relevant part of the factual background conveniently set out in the Chronology of Events Mr. Lam, counsel for the Applicant, prepared for the appointment hearing.

3.The Deceased, a married man, died testate in 1982 leaving a will appointing 3 Executors in his will.  One of the Executors was the Deceased’s wife, Madam Wai Lai Chun (“the Wife”).  Various testamentary dispositions were made, which included a specific devise made in favour of the Applicant (who was then a minor) and the residuary estate bequeathed to the Wife.

4.The three Executors (including the Wife) applied for a grant of probate, which was issued to them in 1984.  The administration of all the assets included in the grant to the Deceased’s estate had been completed.

5.In 1991, the Wife died intestate, and the Applicant obtained a grant of letters of administration in 1994 in respect of the Wife’s intestate estate. The Applicant had also completed the administration of the Wife’s estate.

6.The Applicant later discovered the Deceased had in fact also held some shares in a limited company in Hong Kong, which asset had not  been included in the Deceased’s estate when the Executors applied for the grant of probate of the Deceased’s estate.  Hence, this particular asset of the Deceased has now remained unadministered.

7.After having paid the estate duty of the said unadministered asset, the Applicant had obtained an amendment to the grant in respect of the Wife’s estate.

8.Unfortunately, similar amendment to include the additional unadministered estate to the grant issued to the Executors cannot be made because the Applicant cannot locate the two surviving executors to apply for amendment.  Hence he now wishes to obtain the order as stated in paragraph 1 above so as to enable him to administer the unadministered estate.

THE ISSUE

9.The Probate Registry raised requisition regarding the propriety of the s.36 application for a de bonis non grant.  In this decision, I need to consider:

(A)  Whether a grant should be issued to the Applicant under s.36 in respect of the unadministered estate of the Deceased?

(B)  Is the application for a de bonis non grant regular?

(VI)  A.  SHOULD THE S.36 APPLICATION BE INVOKED?

A1.  The Principle

10.Under s.36, a court has discretion to pass over persons with prior entitlement to the administration of the estate by appointing a fit person as an administrator of a deceased’s estate if such appointment is convenient or necessary.

11.In Re Ho Wai Man [2006] 4 HKLRD 421 – which Mr. Lam has relied on in support the Applicant’s ex-parte application – Cheung J (as he then was) held that the court’s discretionary power under s.36 is very wide.  His Lordship, after having analyzed the legislative history of s.36 with reference to its statutory source basing on s.73 of the English Court of Probate Act 1857, held that s.36 is wide enough to include a court’s power – apart from allowing passing over persons with a prior right – also to issue a grant for the preservation of the estate until an application for a full grant is made. Hence, s.36 can be invoked for a grant ad colligenda bona if it is expedient in the circumstances (See [2006] 4 HKLRD 421at 429, para.31 to 36).

12.Mr. Lam submits that given the fact that the Applicant is the only person being entitled to the entire estate of the Wife (by her being the sole residuary legatee and devisee of the Deceased’s will), it would be necessary or convenient to appoint him to be the administrator of the Deceased’s unadministered estate.  Mr. Lam has placed a particular emphasis on the following part of s.36:

“Where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate.”

A2.  Discussion

13.According to Re Ho Wai Man, s.36 applies to four (overlapping) situations (See [2006] 4 HKLRD 421 at para.18[1] ).  They are all concerned with the four different situations when a grant is required to administer a part of or the entire estate of the deceased’s person upon his death.  A court may be able to issue a grant to any person it deems fit, including a limited grant pending for the issuance of a full grant.

14.S.36, though wide in scope, is not applicable in some situations.  For example, in respect of a situation where the deceased person leaves a will appointing an executor who is willing and competent to take probate and who is resident within the jurisdiction, s.36 grant will not be invoked (see [2006] 4 HKLRD 421 at para. 38).

15.Likewise, in a case as the present where a full grant was already issued to all the executors appointed under the Deceased’s will, and the grant is still valid and subsisting, the circumstance  plainly does not fall within any of the four situations identified in s.36, as discussed in Re Ho Wai Man.

16.In spite of Mr. Lam’s valiant submission, I must respectfully say that his understanding of the scope of s.36 is misconceived, and should be rejected.

17.Since the decision of Re Ho Wai Man, there seems to be a growing trend for the practitioners to use s.36 as a panacea for any problematic cases. It is quite common for the practitioners to resort to s.36 (very often inappropriately) to circumvent the need to adduce sufficient evidence to prove an applicant’s entitlement or simply to get around a procedural difficulty (as in this case).  With these observations, I hope the practitioners would in the future only invoke s.36 when the situation is clearly within its ambit as analyzed by his Lordship in Re Ho Wai Man.

B.  Is the application for a de bonis non grant regular?

18.Having determined that the Applicant cannot rely on s.36 to apply for a grant in respect of the Deceased’s unadministered estate in this case, I do not need to, strictly speaking, deal with the issue of a de bonis non grant. However, as a de bonis non grant has been mentioned in the application, I will also deal with it for completeness.

19.A de bonis non grant will be issued to a person to enable him to administer the unadministered asset of a deceased person when all the persons to whom a grant of probate has been made have died without completing administration.

20.In this case, since the probate of the Deceased’s will is already issued to all the executors appointed under the will, and only one of the grantees has died, the Applicant will not be able to obtain a de bonis non grant.

21.The solicitors for the Applicant also seem to have been confused with the procedural requirement.  While a s.36 application requires an ex parte application to be filed in order to obtain the s.36 order before the Probate Registry would further process the application for a grant, an application for a de bonis none grant does not require the filing of an ex parte application.  It can simply be done by filing an Oath in the appropriate specified form (Forms S3.1a to S3.2b as the case may be).

22.In the circumstances, the application for a de bonis non grant in this case is inappropriate and should be refused.

(V)  CONCLUSION

23.I have great sympathy with the Applicant for the difficulty he faces in this case. However, for the reasons stated above, I must - without prejudice to the Applicant filing a fresh application - reject his application. 

24.The Applicant will be at liberty to make a fresh application for an appropriate grant, and refer to the documents already filed in this application to support his fresh application in the future.

Mr. Allen M.Y. Lam instructed by Messrs. T.S. Tong & Co. for Applicant.