FOO CHAU HUNG v. FU SHU WAN (also known as FOO SHU WAN), the administrator of the estate of Choi Kuk Far, Deceased AND ANOTHER

HCMP 1499/2023 and
HCMP 1500/2023
(Heard Together)

[2024] HKCFI 2325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1499 OF 2023

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1500 OF 2023

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J U D G M E N T

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A.  INTRODUCTION

1.  There are two Originating Summonses before the court for determination:

(1)  HCMP 1499/2023 concerns the estate of Choi Kuk Far (“Mother”, “Mother’s Estate” and “Mother OS”); and

(2)  HCMP 1500/2023 concerns the estate of Foo Chau Ha (“Sister”, “Sister’s Estate” and “Sister OS”).

2.  They are both taken out by the plaintiff, Madam Foo Chau Hung (“P”) against Mr Fu Shu Wan (the 1^st defendant in HCMP 1499/2023 and the defendant in HCMP 1500/2023, “D1”) in his capacity as the administrator of respectively Mother’s Estate and Sister’s Estate (collectively, the “Estates”), pursuant to section 33 of the Probate and Administration Ordinance, Cap 10 (“PAO”).

3.  The 2^nd defendant in HCMP 1499/2023, Mr Foo Shu Chuen (“Brother”), is named as a defendant as he is a beneficiary of Mother’s Estate (and indirectly a beneficiary of Sister’s Estate) and he has neither consented to the Mother OS nor the Sister OS.

4.  At the hearing, P no longer seeks to be appointed as a co-administratrix of the Estates, given the serious breakdown of trust and confidence between P and D1.  P is content for Mr Lin Siu Leung David (“Mr Lin”), an independent solicitor, to be appointed for the due and proper administration of the Estates in the interest of all beneficiaries. 

5.  P therefore seeks an order that (i) D1 be removed as the administrator of the Mother’s Estate and the Sister’s Estate; and (ii) Mr Lin be appointed in his stead with fresh grant of letters of administration for the Estates.  

6.  On 13 December 2023, DHCJ MK Liu ordered that the substantive hearing of the Mother OS and the Sister OS are to take place together, with evidence from both proceedings to be mutually admissible (“Dec Order”). 

B.   FACTUAL BACKGROUND

7.  I refer to the factual background set out in P’s Skeleton Submissions, which is largely based on contemporaneous documents.

8.  P and D1 are siblings.  Their late father and Mother had 4 children.  In the order of seniority they are (i) D1, (ii) Sister, (iii) P and (iv) Brother, which were/are all married.

9.  On 14 June 2021, Sister (who had no children) was killed by her husband who then committed suicide and died on the same day.  On 12 December 2021, Mother died at the age of 91.  They both died intestate.

10.  In early August 2021, P learnt from D1 that Mother had instructed Messrs Benny Kong & Tsai (“BKT”) to handle Sister’s Estate.  However, at that time Mother was already 91 years of age, illiterate and suffered from memory issues (for example, not recalling Sister’s tragic death).  P therefore instructed Messrs Hom & Associates (“H&A”) and proposed to handle the administration of Sister’s Estate for Mother’s benefit on 9 September 2021.

11.  Shortly thereafter, P received a photograph of a purported written instruction from Mother to her nursing home dated 10 September 2021 (witnessed by D1’s wife, “Cheng”), seeking to cut P off from any contact with her and stated that Mother’s intention may be ascertained via D1 or Cheng.  It only transpired in D1’s 3^rd Affirmation filed in  HCA 1500/2023 (ie on 1 December 2023 after the Mother OS had been taken out) that Mother purportedly gave written authorisation to D1 (and nobody else) to administer Sister’s Estate and her assets (“Mother’s Purported Authorisation”), also on 10 September 2021 and witnessed by Cheng.

12.  P wanted to avoid disputes and proposed to jointly administer Mother’s Estate by H&A’s letter dated 26 April 2022.  On the same day, D1 unequivocally agreed via WhatsApp and WeChat with P that P and D1 were to co-administer Mother’s Estate with H&A as their solicitors^[1].  D1 again unequivocally confirmed the same on 8 May 2022 via WeChat with P, adding that Brother also agreed to the arrangement^[2].  Subsequently, by letter dated 18 May 2022, BKT (acting for D1) formally put on record that D1 agreed to co-administer Mother’s Estate together with P (which Brother also supported) and D1 was minded to cooperate with P in the application for letters of administration.  There was no indication that it was not acceptable for H&A to act as the solicitors.  For reasons better known to him, D1 now alleges that he felt “challenged” by the idea of co-administration with P since 26 April 2022.

13.  Notwithstanding D1’s unequivocal agreement to co-administer Mother’s Estate with P through H&A, by BKT’s letter dated 4 July 2022, D1 suddenly asked if P would jointly make application in respect of Mother’s Estate through BKT and requested P to reply by noon on the same day.  P conceded on 18 July 2022 as she felt unreasonable to allow this logistic issue to ruin their agreed cooperation, and P still reposed trust on D1 as her eldest brother.  It should be noted that in the 4 July 2022 letter, there was no indication that D1 would apply to be the sole administrator of Mother’s Estate.

14.  P did not hear from D1 about the joint administration in the next 2 months.  Thus, by H&A’s letter dated 12 October 2022, P recorded that she had been ready to make the relevant application in respect of Mother’s Estate, just that she was relying on D1’s earlier promise and waiting for BKT to prepare the relevant application, and gave notice that H&A would immediately proceed with her application on a solo basis if no response was forthcoming.  Also in October 2022, P (not D1) managed to correspond with Sister’s former employer (the “IRD”) to ascertain Sister’s death benefits.

15.  With no response from D1, on 12 December 2022 P applied for letters of administration of Mother’s Estate.  Upon the Probate Registry’s requisition dated 11 January 2023 and H&A’s search at the Probate Registry, it transpired that D1 had reneged on his earlier agreement and made his own solo application way earlier on 5 July 2022 (ie the day immediately after BKT enquired if P was to join D1 to prepare a joint application via BKT), worse still, with D1 affirming the Form N4.1 even earlier on 30 June 2022 (ie before BKT’s letter dated 4 July 2022).  The letters of administration for Mother’s Estate (“Mother’s LA”) was granted to D1 as the sole administrator on 6 September 2022. 

16.  D1 then completely ignored P’s legitimate requests for a copy of Mother’s LA as a beneficiary of Mother’s Estate.  Further, by letter dated 27 April 2023, P still asked for D1’s consent to have her joined as an additional administratrix as per their earlier consensus.

17.  In late July 2023, P learned from the police that D1 was applying to collect the articles of Sister and the late brother-in-law.  Upon H&A’s search at the Probate Registry, it transpired that the letters of administration for Sister’s Estate (“Sister’s LA”) had also been granted to D1 as the sole administrator on 10 July 2023.  It was only pursuant to the Dec Order that D1 finally provided P with a copy of Sister’s LA.

C.  RELEVANT LEGAL PRINCIPLES

18.  Section 33(3) of the PAO provides that:

“The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”

19.  The principles concerning the exercise of the court’s power under section 33(3) of the PAO have been recently summarised in Lau Wai Ling Winnie v Lau Yu Ming David [2024] HKCFI 354 at §15:

“(1) The discretion to remove an executor or an administrator under section 33 of the PAO involves an assessment and a value judgement in all the relevant circumstances of whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries.

(2) Not every mistake or neglect of duty, or inaccuracy of conduct of trustees would induce the court to remove the executor or the administrator.

(3) The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or want of proper capacity to execute the duties, or a want of reasonable fidelity.

(4) Hostility between the executor/administrator and the beneficiary is not a ground for removal, unless the breakdown of the relations between them is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative.

(5) In exercising its discretion, the court should have regard to the size of the estate, the nature of the assets that need to be administered, the background and education, training and experience of the remaining and substituted personal representatives and the interests of the beneficiaries. The view of the majority beneficiaries is a relevant factor.

(6) The discretion to remove an executor or an administrator is to be exercised with great caution and sparingly. In general, removal is not to be preferred unless the administration is still far from completion. The courts are reluctant to exercise the discretion where the incumbent executor or administrator wishes to carry on, without allowing that incumbent an opportunity to repair or remedy any defects and progress promptly with due administration. The fact that administration of the estate could have been done better is not of itself sufficient ground.” (Emphasis supplied)

D.  DISCUSSION

D1.  D1’s arguments against removal and allegations against P

20.  It appears D1’s argument against his removal as administrator is that he was Mother’s sole provider, guarantor and agent (“唯一供養人，保證人，委托人”), and he solely made provisions for Mother for 25 years before she passed away.

21.  D1 further alleges that co-administration with P is not viable for the following reasons (collectively, “Allegations”):

(1)  On 14 June 2021, P promised to appoint D1 as administrator of Sister’s Estate if D1 would clean up the death scene of Sister and their brother-in-law.  Yet on 17 June 2021, P proposed that she was to deal with Sister’s Estate.  On 28 May 2022, P further proposed that she was to be the single administrator;

(2)  P is not fit to administer the Estates given her health and mental conditions;

(3)  P failed to provide various documents to D1, for example, Hong Kong Identity card and certificate for cremation of Sister and the brother-in-law;

(4)  P attempted to wrestle control over the administration of Sister’s Estate from Mother; and

(5)  P spent hundreds of thousands on prayer sessions and burial services without D1’s or Brother’s consent, and insisted that such expenses should be paid from the Estates.

22.  It is significant to note that none of the above reasons were put to P before D1 proceeded to apply to be appointed as the sole administrator of Mother’s Estate.  If they were genuine reasons, which I hold them not to be, surely D1 should have put the Allegations to P before going back on his promise of joint representation.

D2.  D1 should be removed as administrator of both Estates

23.  First, P submits that with D1’s heavy emphasis on his financial provision to Mother prior to her death, it is unknown whether D1 will make any claim against Mother’s Estate for reimbursement.  P submits it is plain that D1’s personal (and financial) interest may potentially conflict with the due administration of Mother’s Estate.  This alone justifies his removal. 

24.  I do not agree with P’s submissions in this regard.  First, in the Form N4.1 dated 30 June 2022 lodged by D1 in respect of Mother, it was stated that Mother’s Estate has no liability.  D1 is likely to be estopped by such a statement.  Further, in the Supplemental Skeleton Submissions of D1, he has confirmed that he would not make any claim against the Mother’s Estate.

25.  However, P is on much more solid ground when she complains that D1 clearly went back on his unequivocal promise of co-administration and secretly obtained Mother’s LA and Sister’s LA behind P’s back.  This demonstrates his refusal and failure to inform and communicate with P, his difficult and deceptive attitude in respect of the administration of the Estates, and more importantly a want of honesty.  In my view, on this ground alone, P has justifiably lost confidence in D1’s ability to duly administer the Estates.  The deep-rooted distrust between P and D1 is sufficiently serious to render the continuance of the sole administration by D1 untenable. 

26.  Moreover, D1’s reliance on Mother’s Purported Authorisation is not to the point.  Authority conferred to D1 (if any) under Mother’s Purported Authorisation has already terminated upon the Mother’s death.

D3.  Independent professional administrator should be appointed in place

27.  Given the degree of hostility and distrust, I agree that an independent professional administrator should be appointed in place of D1.

28.  Mr Lin of Messrs CP Lin & Co has over 30 years of relevant experience as a solicitor.  D1 has not challenged Mr Lin’s professional qualifications and experience or suitability to act as administrator of the Estates. 

29.  Given the relatively simple constitution and modest amount of the Estates, P envisages that the major tasks would be for Mr Lin to (i) collect assets for the Estates (the bulk of which is made up of Sister’s IRD death benefits); and (ii) impartially entertain claims against the Estates (and to consider whether there is sufficient supporting documentation and justification for the expenses). The remainder may then be distributed to the beneficiaries.  These should be straightforward matters for an experienced solicitor.  In any event, his remuneration will be capped under section 60 of the PAO. 

30.  P submits and I agree that the benefit derived from professional administration in this case (in particular the efficient and impartial collection and distribution of assets to all beneficiaries) far outweighs the cost.  One should not lose sight of a realistic possibility that, if D1 is to remain as sole administrator of the Estates and there are doubts as to whether he is impartially discharging his duties, parties may well have to engage in time-consuming and costly litigation.  Appointing an independent professional administrator effectively eliminates or substantially reduces the risk.

E.  CONCLUSION

31.  By reason of the foregoing, I hold that D1 should be removed as administrator of both Estates and Mr Lin should be appointed as the new administrator. 

32.  In respect of Mother’s Estate in HCMP 1499/2023, I make the following order:

(1)  D1 be removed as the administrator of Mother’s Estate;

(2)  Mr Lin of Messrs CP Lin & Co be appointed as the new administrator in place of D1;

(3)  D1 shall within 14 days from the date hereof lodge with the Probate Registry the Letters of Administration (Grant No HCAG 010038/2022);

(4)  D1 shall within 28 days from the date hereof furnish by way of affirmation a just and true account of Mother’s Estate under his administration and serve a copy on P, the 2^nd defendant and Mr Lin.

33.  In respect of Sister’s Estate in HCMP 1500/2023, I make the following order:

(1)  D1 be removed as the administrator of Sister’s Estate;

(2)  Mr Lin of Messrs CP Lin & Co be appointed as the new administrator in place of D1;

(3)  D1 shall within 14 days from the date hereof lodge with the Probate Registry the Letters of Administration (Grant No HCAG 017097/2022);

(4)  D1 shall within 28 days from the date hereof furnish by way of affirmation a just and true account of Sister’s Estate under his administration and serve a copy on P and Mr Lin.

34.  P submits that costs should follow the event with D1 bearing P’s costs on an indemnity basis in light of D1’s unreasonable and uncooperative stance which obstructs and delays the proper administration of the Estates.  Further, D1 should bear these costs personally, relying on Lam Ka Wai Rebecca v Lam Jenny, the Administrator of the Estate of Lam Kam Wai [2023] HKCFI 530.

35.  Accordingly, I make the following order as to costs:

(1)  Costs of and occasioned by the Mother OS (including all costs reserved, if any) be paid by D1 personally (ie not to be reimbursed by the estate) to P on an indemnity basis, to be taxed if not agreed.

(2)  Costs of and occasioned by the Sister OS (including all costs reserved, if any) be paid by D1 personally (ie not to be reimbursed by the estate) to P on an indemnity basis, to be taxed if not agreed.

36.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.