Leung Shui Ling Nicole v. Chan Siu Sheung Helen

DCMP 1573/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1573 OF 2010

____________

Before: H H Judge Chow

Date of hearing: 12 June 2012

Date of handing down Decision: 24^th July 2012

----------------------

DECISION

----------------------

1.This Court has to deal with two summonses, namely, the Plaintiff’s summons dated 6 January 2012, and the defendant’s summons dated 8 February, 2012. In her summons, the plaintiff applied for the following orders:-

“1. The defendant do pay an interim payment of HK$2,000,000 to the plaintiff within 7 days from the date of Order hereof, with liberty to apply.

2. The plaintiff’s Originating Summons be fixed for a 4-day trial,

(1) with the affirmations filed by the parties standing as evidence-in-chief;

(2) with leave to parties to cross-examine the deponents of the affirmations.”

In her summons, the defendant applied for an order that the proceedings in this case, including the plaintiff’s summons dated 6 January 2012, be stayed pending the outcome of the Probate Action (HCAP No 30 of 2011) (“the Probate Action”).

2.Pursuant to the consent of both parties, in respect of the Defendant’s summons I made an order that “these proceedings shall not be set down for trial until the final determination of the Probate Action or further order”.  The remaining issue for this Court to consider is whether the defendant’s application for stay of proceedings, pending the outcome of the Probate Action, should also apply to the plaintiff’s application for an interim payment of HK $2,000,000.

3.In the present action, the plaintiff claims to have been in an intimate relationship with Chow Wai Lam, William (“the Deceased”) before his death, when he supported her and her son financially.  The defendant is the lawful widow the Deceased, and is the sole administratrix by virtue of letters of administration granted on 22 December 2009. The Deceased passed away in August 2009, leaving behind him a number of assets.

4.On 8 June 2010, the plaintiff took out these originating summons, pursuant to section 4 and section 7 of the Inheritance (Provisions for Family and Dependants) Ordinance (“the Ordinance”), against the Defendant, for the following order:-

(1)   that the plaintiff be paid such lump sum payments under section 4 of the Ordinance out of the Deceased’s net estate;

(2)   an order that the plaintiff be paid such interim periodical payments under section 7 of the Ordinance out of the Deceased net estate.

5.On 14 December 2011, a Madam Leung Woon Lin Irene (“Leung”) instituted the Probate Action in the Court of First Instance.  In the Statement of Claim, Leung claims that she is the sole executrix and sole beneficiary named in the true last will and testament dated 20 November 1992 of the Deceased,  She claims against the defendant to have the Letters of Administration granted to the defendant on 22 December 2009 to be revoked, on the ground that it had been obtained by an incorrect statement, in that the Deceased in fact died testate, leaving the said true last will and testament dated 20 November 1992, as opposed to dying intestate.

6.Section 4(1) of the Ordinance provides:-

“(1) Where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination if his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders –

(a) …..

…..

(e)     ….. ”

7.Section 7 of the Ordinance is the provision relating to the application for interim payment.  It reads:-

“(1) Where on an application for an order under section 4 it appears to the court –

(a) that the applicant is in immediate need of financial assistances, but it is not yet possible to determine what order (if any) should be made under that section; and

(b) the property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant, the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court thinks reasonable; and the court may order that, subject to this Ordinance, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under section 4 or decides not to exercise its powers under that section.

(2) Subsections (2), (3) and (4) of section 4 shall apply in relation to an order under this section as they apply in relation to an order under that section.

(3) In determining what order, if any, should be made under this section the court shall, so far as the urgency of the case admits, have regard to the same matters as those to which the court is required to have regard under section 5”.

8.Section 7(3) requires this court to have regard to the same matters as those to which the court is required to have regard under section 5.  Section 5(a) provides: –

“Where an application is made for an order under section 4, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters – ”

9.To determine, under section 5 (a), whether the disposition of the deceased’s estate has made reasonable provision for the applicant who has made an application for interim payment, the court has to consider whether the disposition of a deceased’s estate is effected by his will, or the law relating to intestacy, or the combination of his will and the law relating to intestacy.  The different bases upon which the dispositioin of a deceased’s estate is effected will produce different results on the issue of whether the disposition of the deceased’s estate has made reasonable provision for the applicant.  In the present case, it is not yet known whether the disposition of the Deceased’s estate is effected by the law relating to intestacy, as evidenced by the Letters of Administratix granted to the defendant, or effected by his will, as claimed by Leung in the Probate Action.  This issue must be resolved first before this Court can proceed to apply the relevant provisions under section 5 of the Ordinance, and this issue can only be resolved by the Court of First Instance in the Probate Action.  After this issue has been resolved, then this Court will have a proper basis to decide whether the disposition of the Deceased’s estate has made reasonable provision for the plaintiff.  But this is on the assumption that Leung fails in the Probate Action, and the disposition of the Deceased’s estate is effected by the law relating to intestacy.  If Leung succeeds in establishing her case and revokes the Letters of Administration granted to the defendant, then the defendant has no power to deal with the Deceased’s property.  In that case, the proper person to be sued by the Plaintiff for interim payment is Leung, and not the defendant.  Thus, the adjudication in the Probate Action is fundamentally important to the course to be taken by this Court in the present case.  So the Probate Case should be adjudicated first.  Accordingly I order that the application for interim payment be stayed pending the determination of the Probate Action.

Costs

10.I make an order nisi, to be made absolute in 14 days’ time, that regarding the application under paragraph 1 of the plaintiff’s summons, the Plaintiff is to pay the Defendants costs, to be taxed, if not agreed, with certificate for Counsels.  In respect of the application under paragraph 2 of the Plaintiffs summons, there be cost in the cause of these proceedings.

The plaintiff: represented by Mr. Lam Chin Ching, Gary, instructed by M/S Lo, Wong & Tsui, Solicitors

The defendant: represented by Miss Lisa Wong, SC and Elaine Liu, instructed by M/S Chaine Chow & Barbara Hung, Solicitors

Please refer to HCMP2870/2012 for the relevant appeal(s) to the Court of Appeal.