YE HONG YING v. CHAN LUP YING

HEADNOTE

[An application under the Deceased's Family Maintenance Ordinance (Cap. 129) for reasonable provision to be made for maintenance out of a deceased's estate may be made before the grant of probate : Re McBroom [1992] 2 FLR 49 not followed.]

1995 M.P. No. 3459

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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INTRODUCTION

1. On 17th November 1995, the Plaintiff, Madam Ye Hong Ying, filed an originating summons under section 4(1) of the Deceased's Family Maintenance Ordinance (Cap. 129) ("the DFMO"). She sought an order that reasonable provision be made for her maintenance out of the estate of her late husband, Fung Chi Fong. She named Madam Chan Lup Ying as the Defendant. That was because Madam Chan claimed to have been the lawful wife of Mr. Fung. It had been alleged that Mr. Fung had executed a will naming Madam Chan as the sole executrix of the will and the sole beneficiary of his estate.

GROUNDS FOR STRIKING OUT THE ORIGINATING SUMMONS

2. It is argued on Madam Chan's behalf that the originating summons should be struck out or that the action should be ordered to continue as if it had been begun by writ. Five grounds are advanced :

(i) The Court has no jurisdiction to make an order under the DFMO, because the DFMO was repealed on 3rd November 1995 by section 28 of the Inheritance (Provision for Family and Dependants) Ordinance (No. 58 of 1995) ("the I(PFD)O");

(ii) the filing of the originating summons on 17th November 1995 was premature, because probate for Mr. Fung's estate had not been granted by then;

(iii) the outcome of the application for reasonable provision depends on facts which are in dispute, and that makes the dispute between Madam Ye and Madam Chan inappropriate for resolution by the originating summons procedure;

(iv) Madam Ye's claim is based on an allegation of fraud, and in those circumstances her claim had to be begun by writ; and

(v) the originating summons is an abuse of the Court's process because of other remedies which Madam Ye has available to her.

THE REPEAL OF THE DFMO

3. Transitional arrangements consequential on the enactment of the I(PFD)O are contained in section 33 of the I(PFD)O. Section 33(1) provides that the repeal of the DFMO shall not affect its operation in relation to any application made under the DFMO, even an application made after 3rd November 1995, provided that the application related to someone who had died prior to 3rd November 1995. Since Mr. Fung had died on 25th January 1993, this application survived the repeal of the DFMO. Accordingly, the originating summons cannot be struck out on the basis of its repeal.

THE GRANT OF PROBATE

4. Were the issue free from authority, I would have had no hesitation in saying that the provisions of the DFMO are entirely consistent with the right to make an application for reasonable provision before the grant of probate. I say that for two reasons :

(i) To hold otherwise would be to frustrate the clear objective of section 11(1) of the DFMO, which enables the Court, when an application for maintenance has been made, to make an interim maintenance order if the applicant is in immediate need of financial assistance. As Mr. Anthony Ismail for Madam Ye rhetorically asks, how can immediate financial assistance be given if an applicant cannot apply for it until probate has been granted? It is true that there is an issue in this case as to the size of Mr. Fung's estate. There is therefore the risk that if Madam Ye could apply for interim maintenance before the grant of probate, and was awarded a not insignificant amount, that amount could wipe out the whole estate if it is subsequently found on the substantive application that the estate is nothing like as large as it was thought to be when an order for interim maintenance was made in Madam Ye's favour. But the grant of interim maintenance is in the discretion of the court, and Mr. Ismail accepts that uncertainty as to what the size of the estate will turn out to be is a factor which the court can take into account in determining whether it is an appropriate case for interim maintenance, and if so, what the amount of the interim maintenance should be.

(ii) The only provision in the DFMO which deals with when an application is to be made is section 6. It creates a limitation period for the bringing of an application under the DFMO, i.e. 6 months from the date on which representation in respect of the deceased's estate is first taken out. In other words, what it does is to prevent applications which are made after the expiration of that 6 months' period. I do not read it as preventing applications which are made before the 6 months' period has commenced, i.e. before the taking out of such representation. As Roxburgh J. said in Re Searle [1949] 1 Ch. 73 at pp.75-76 when dealing with a similar provision in section 2(1) of the Inheritance (Family Provision) Act 1938:

" ... the obvious purpose of this section is to prevent applications from being made too late, when parties have altered their position by treating the dispositions made by the testator as effective. It seems to me improbable that Parliament ever thought of applications which might be made too soon."

5. However, the matter is not entirely free from authority. In Re McBroom [1992] 2 FLR 49, Eastham J. held that probate or letters of administration had to have been granted before an application for reasonable provision from a deceased's estate could be made under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). The judgment of Eastham J. was delivered ex tempore, and in any event contains no reference either to Re Searle or to section 5(1) of the Act relating to interim orders, which is the equivalent of section 11(1) of the DFMO. But what convinces me that Re McBroom has no application in Hong Kong is that I read Eastham J. as having been materially influenced by two particular provisions:

(i) section 19(3) of the Act, which required a copy of every order under the Act to be endorsed on or permanently annexed to the probate or the letters of administration;

(ii) Ord. 99 r. 3(3) of the Rules of the Supreme Court in England, which required an affidavit by the applicant in support of the summons, exhibiting an official copy of the grant of representation of the deceased's estate, to be lodged with the Court.

These provisions have not been reproduced in either the DFMO or the Rules of the Supreme Court of Hong Kong. It follows that the arguments which appealed to Eastham J. in relation to applications under the Act have no bearing on applications under the DFMO.

6. For these reasons, I rule that an application for reasonable provision for maintenance under the DFMO can be made before the grant of probate, and accordingly Madam Ye's application was not premature. Since this judgment lays to rest the debate as to whether Re McBroom applies to Hong Kong, I give leave for this judgment, though delivered in chambers, to be circulated and reported.

DISPUTED FACTS

7. It is common ground that the outcome of the application for reasonable provision for maintenance depends on a number of facts which are in dispute. But that does not necessarily render the originating summons procedure inappropriate. Ord. 28 r. 4(3) permits the resolution of disputed issues of fact on the hearing of the originating summons. What the Court has to consider is

"whether the just, expeditious and economical disposal of the proceedings can ... best be secured by hearing the summons on oral evidence or mainly on oral evidence".

Indeed, Ord. 28 r. 4(4) enables the Court to give directions for the attendance of deponents of affidavits or affirmations for cross-examination. As it is, on 8th January 1996, Patrick Chan J. ordered the deponents of all affirmations or affidavits to attend the hearing of the application for cross-examination, as well as making orders for mutual discovery and inspection, upon the assumption that the Court would eventually decide to permit the proceedings to continue by way of the originating summons procedure.

8. In the circumstances of this case, I do not think that the procedural advantages of an action begun by writ, in particular the need for properly particularised pleadings, justify the exercise of my power under Ord. 28 r. 8(1) to order the proceedings to continue as if they had been begun by writ. The ultimate resolution of the dispute between Madam Ye and Madam Chan would be significantly delayed, and that would not be a good thing in view of their ages. And the fact that Madam Chan's advisers have not had the advantage of seeing a Statement of Claim did not prevent them from drafting a clear and concise affirmation for Madam Chan to depose to. I therefore decline to strike out the originating summons, or to order that the proceedings be treated as if begun by writ, merely on the ground that the outcome of the application depends on facts which are in dispute.

FRAUD

9. If Madam Ye's claim can properly be said to be based on an allegation of fraud, it ought to have been begun by writ. That is what Ord. 5 r. 2(b) provides. However, that would not have meant that the proceedings would have had to have been struck out. That is because Ord. 2 r. 1(3) provides :

"The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed."

However, I do not think that Madam Ye's claim is based on an allegation of fraud. She denies that Madam Chan ever became Mr. Fung's lawful wife, but that by itself cannot amount to an allegation of fraud. She disputes the validity of the will, but she does not state on what ground she does so, and there is no suggestion of any trickery or undue influence on the part of Madam Chan to get Mr. Fung to name her as the sole beneficiary of his estate. She claims that Madam Chan and her children have been attempting to take over Mr. Fung's business, but I do not read that as being an allegation of fraud, because if Madam Chan was the sole beneficiary of the estate, that is what she would have been entitled to do. It follows that, in my view, Ord. 5 r. 2(b) simply has not been engaged, and therefore there was no requirement for these proceedings to have been begun by writ.

ABUSE OF PROCESS

10. Finally, Mr. Wong Po Hoi for Madam Chan submits that what Madam Ye is really complaining about is the will itself and the fact that Madam Chan has been named as the executrix of it. What she should be doing is seeking a declaration that the will is invalid and an order for the removal of Madam Chan as the executrix. He argues that it is inconsistent for Madam Ye to be challenging the will on the one hand, but to be asking for reasonable provision from the estate on the other. I see the force of that argument, but I am not persuaded by it. It is for Madam Ye and her advisers to decide on what proceedings to issue. There is no doubt that Madam Ye can make an application for reasonable compensation under section 4(1) of the DFMO. The inconsistency relied upon by Mr. Wong, if there is one, can be taken account of at the hearing of the originating summons, because section 7(1)(d) of the DFMO permits the Court to have regard to anything which it considers relevant.

CONCLUSION

11. For these reasons, I decline to order that these proceedings be struck out, or that they should continue as if they had been begun by writ. It follows that Madam Chan's summons filed on 21st December 1995 must be dismissed.