RE WAN SING HON

HCMP 1554/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1554 OF 2010

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REASONS FOR DECISION

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1.  This decision concerns the proper practice for an application for grant ad colligenda bona. The Plaintiff filed an application for such a grant with the Probate Registry in respect of the estate of her late husband [“the Deceased”] on 9 August 2010 in HCEA 000083/10.

2.  The Deceased died in the early hours of 9 July 2010.  Out of the marriage between the Plaintiff and the Deceased, four children were born. At the time of the death of the Deceased, the Plaintiff was living separately from the Deceased and the children, she having issued a notice of separation to him through a firm of solicitors. 

3.  The Plaintiff alleges that the siblings of the Deceased intermeddled with the estate of the Deceased and seeks a preservation grant to protect the estate. The evidence shows that substantial sums had been withdrawn from the Deceased’s bank account after his death and his credit card was being used by others. The Plaintiff’s evidence also suggests the siblings were the persons who made the withdrawals. On the other hand, one of the siblings told the Plaintiff that the Deceased had left a will empowering the siblings to deal with the estate. The siblings have not yet applied for probate and the alleged will was not shown to the Plaintiff.

4.  In addition to her affirmation, solicitors for the Plaintiff also filed a copy of counsel’s submissions dated 10 August 2010 to support her application. One of the issues raised in the submissions is whether the matter should be proceeded on inter partes basis and if so, whether time should be abridged for the inter partes hearing.

5.  In accordance with its usual practice, the Probate Registry raised requisitions in respect of outstanding matters by a letter dated 13 August 2010. I do not need to go into the details of these requisitions. Suffice to say for present purpose that they seek information from the Plaintiff which should have been set out in the original affirmation.

6.  Solicitors for the Plaintiff answered the requisitions on 16 August 2010 and reiterated the query as to whether the matter should be proceeded on inter partes basis. On 17 August 2010, the Probate Registry gave an appointment to the solicitors for the Plaintiff to discuss the matter with Master Levy on 31 August 2010. Master Levy was on leave at that time.

7.  The Plaintiff considered that 31 August 2010 was too late bearing in mind the need to preserve the estate in the meantime. Instead of writing to the Probate Registry asking for an earlier appointment, the Plaintiff issued a new application seeking the same relief in HCMP 1554 of 2010 on 17 August 2010 to have the matter heard by a judge instead of the master.

8.  Whilst I can understand the anxiety of the Plaintiff and her solicitors to have the matter heard as early as possible, subject to what I said regarding the correct procedure in respect of contentious business below, I must point out that duplication of proceedings (with the resultant duplication of legal costs) in such manner is not the right solution. According to my understanding regarding the operation of the Probate Registry, there are more than one masters dealing with probate matters and at least one such master is available at all time to deal with urgent probate applications (including applications for ad colligenda bona grant). If necessary, practitioner can approach the Registrar on good grounds to arrange for an early hearing.

9.  It was said on behalf of the Plaintiff that enquiry had been made with the probate registry by a clerk of the solicitors firm to see whether the matter could be dealt with by another master but to no avail. The clerk deposed to that in an affirmation. There was however no written request from the Plaintiff’s solicitor nor did she attend to the matter personally. This is unfortunate and perhaps there had been miscommunication between the clerk and the staff at the Registry. I shall refer the matter to the Registrar for investigation and to ensure that urgent probate matters will be promptly attended to.

10.  In any event, this judgment should serve as a reminder on the correct practice for the future. Solicitor should make the request for an urgent date personally to the Registry setting out the grounds for urgency. Even though an application for ad colligenda bona grant by its very nature requires prompt attention, there are different degrees of urgency. A solicitor should give more specific grounds for asserting urgency other than stating generally that it is an application for ad colligenda bona grant. Better still, it would be good practice to make the request in writing by letter.

11.  Having said that, this court obviously has concurrent power to deal with an application of this nature. At the hearing on 24 August 2010, Miss Lok indicated that the Plaintiff would not proceed with the HCEA proceedings and instead make her application in the context of the HCMP proceedings. Solicitor for the Plaintiff gave an undertaking to the court to write to the Probate Registry to withdraw the application in HCEA. Since this court has seized with the matter and given the contentious nature of the application on the facts of this particular case as well as the need for immediate injunctive relief, it is my conclusion that the matter should be carried on by way of HCMP. I shall elaborate on the reasons for such conclusion as it may provide some guidance to practitioners.

12.  Though ad colligenda bona grant only gives title to the grantee to preserve the estate, it is nonetheless a grant. The jurisdiction of a probate master under Section 5 of the Probate and Administration Ordinance Cap.10 [“PAO”] is to issue grant in non-contentious business. Section 6(1)(a) of the PAO prescribed that no grant shall be made by the Registrar under section 5 in any case in which there is contention until the contention has been disposed. Thus, a probate master has no jurisdiction over contentious probate business pursuant to Section 5 of the PAO until the contention has been determined.

13.  Two points should be noted. First, the fact that a probate master lacks jurisdiction under Section 5 of the PAO only means that he or she cannot deal with the matter by way of non-contentious business. It does not mean that the master lacks jurisdiction to deal with the matter in the context of, say HCMP proceedings, under Order 32 Rule 11, see Yu Hong Ping v Kenneth Yuen [2009] 6 HKC 347. Whether a particular issue should be determined by a master in the exercise of the power under Order 32 Rule 11 depends on the circumstances of the case. Certainly, if a judge deems fit, he or she could order specific matter be determined by a master even in the context of contentious business.

14.  Second, for the purpose of Section 6(1)(a) “contention” means contention as to whether a grant should be issued at all or on what basis a grant should be issued as in the case of two competing wills, the validity of which has to be determined by a probate action. The expression does not encompass the secondary dispute on the identity of the persons to whom a grant should be issued on the determined basis. As regards the latter, the probate master has jurisdiction to resolve by way of non-contentious business. The phrase “no contention as to the right” to a grant in the definition for “non-contentious or common form probate business” in Section 2 of the PAO should be understood in that light. 

15.  I understand that the probate masters often hear and decide inter partes arguments on the following matters: appointment of administrators when two persons are entitled to priority to the same degree, summons for directions pursuant to Rule 44(10) of the Non-Contentious Probate Rules, hearing of summons issued by citors under Rule 46(7) of the Non-contentious Probate Rules and in an application for discretionary grant.

16.  I agree that these matters properly fall within the scope of non-contentious probate business even though there could be competing arguments advanced to the court. They should be dealt with by a probate master under the rubrics of the Non-contentious Probate Rules.

17.  In the context of an application for ad colligenda bona grant, disputes about whether such a grant should be issued at all are contentious business. In contrast, if it is agreed by all concerned that there is a need for such a grant and the dispute is about the identity of the person to be appointed and the terms on which the appointment is to be made, it would be non-contentious business.

18.  In the present case, the main reason advanced by the Plaintiff for having the ad colligenda bona grant is to preserve the estate against the intermeddling by the siblings. Given the suggestion that the Deceased had made a will appointing the siblings as executors, the court should not conclude that such a grant should be issued (irrespective of the identity of the person to be appointed) without at least hearing from the siblings about their case as to the alleged will and their reasons for intermeddling.

19.  In the English case of Ghafoor v Cliff [2006] 1 WLR 3020, it was held that where there are serious allegations and substantial disputes, an application for ad colligenda bona grant should be dealt with on inter partes basis. In that case, the ad colligenda bona grant was issued by the registrar of the probate registry on ex parte basis. The persons appointed were two solicitors in the firm acting for the applicant. The applicant was one of the executors and she had disputes with the other executors. The will was not challenged but there were serious allegations by the applicant against the other executors. After the other executors learnt of the grant, they applied to the Chancery Division for revocation of the grant. Eventually, it was accepted by all concerned that the grant should be revoked but the parties had to argue on costs.

20.  When dealing with costs, David Richards J considered the relevant principles governing the correct procedure for an application for ad colligenda bona grant. His Lordship accepted that in uncontroversial cases, it is sensible and desirable that such application should be dealt with as non-contentious business by the probate registry (see para.4 of the judgment). But in a highly contentious situation, he was of the view that the matter should not be disposed of without hearing the other side (paras.56 to 60).

21.  At paragraph 59 of the judgment, David Richards J held that on the facts of that case the registrar should have given directions for having the matter proceeded by way of inter partes summons and if the other side responded to the applicant’s evidence, the matter should be referred to a judge. In Hong Kong, a probate master has similar powers under Rule 60 of our Non-Contentious Probate Rules.

22.  Apart from the mode of application, I would like to mention two other principles highlighted in that judgment. One of the claimants’ grounds for revocation in that case was the breach of the duty of full and frank disclosure in the ex parte application before the registrar. At paras.46-47, David Richards J held that the duty of full and frank disclosure applies equally to non-contentious probate applications as in ex parte application forinjunction. I agree. I would also add that, as I said in Re the Estate of Yeh Lien The HCMP 1809 of 2008, 8 October 2008, the proper administration of justice requires an applicant for grant to exercise due diligence in providing information to the court. Practitioners have a duty to advise their clients accordingly. These observations apply equally to an application for ad colligenda bona grant.

23.  As regards the choice of the persons to be appointed under an ad colligenda bona grant, David Richards J said at para.63,

“In an uncontroversial case, the appointment of an interested person or his solicitor may well be very sensible. In a highly contentious case such as the present, where there appear to be serious divisions between the executors/beneficiaries and one is accusing the others of dishonesty and misappropriation, the need for an independent appointment on this application is in my view clear. Those interested in the estate are entitled to have confidence in the impartiality of the person appointed to represent the estate. The solicitor for one of the parties involved would not reasonably be viewed as independent or impartial.”

24.  With respect, I entirely agree. By the summary nature of an application for ad colligenda bona grant, the court cannot resolve serious allegations and cross-allegations between the parties. Like the choice of committee in the context of an application under Part II of the Mental Health Ordinance, it is sensible in such circumstances to appoint some independent persons to such fiduciary post when there are serious conflicts.

25.  Coming back to the mode of application, Miss Lok on behalf of the Plaintiff had very properly referred to Ghafoor v Cliff [2006] 1 WLR 3020 in the written submissions filed in HCEA (and again in those submissions filed in HCMP). The Plaintiff therefore sought to have directions from the probate master in HCEA as to whether there should be inter partes hearing. She sought similar directions in the context of the HCMP proceedings.

26.  Notice of the hearings were given to the siblings. On 20 August, Au J considered more time should be given to them to respond. Despite that, they did not attend the hearing before this court on 24 August.

27.  Having heard submissions from Miss Lok and read the evidence filed, I am of the view that the three siblings identified as being involved in the intermeddling of the estate should be joined as defendants. I therefore ordered them to be joined on 24 August.

28.  Even though the Defendants have yet to respond, the evidence of the Plaintiff indicated that the matter is likely to be contentious. In such circumstances, in accordance with the principles considered in Ghafoor v Cliff [2006] 1 WLR 3020, the application for ad colligenda bona grant should not be determined without giving the siblings a fair opportunity to be heard.

29.  It is a matter of judgment whether the Plaintiff should commence proceedings as non-contentious business by HCEA proceedings or as contentious business by HCMP proceedings in the light of what was said by the siblings as to the existence of a will authorizing them to deal with the estate. The Plaintiff (and those advising her) could legitimately take the view that the siblings were merely making wild allegations and would not be able to substantiate the same by evidence. If that were the case, they would not be able to put forward any contention and it may be possible to deal with the application within the rubrics of the Non-contentious Probate Rules.

30.  On the other hand, I think it is premature to assume that the siblings would not be able to produce any substantive evidence to support their case simply because of their failure to attend the hearings of 20 and 24 on notice. The existence or non-existence of a will as alleged and the terms of the will (if it exists) could make a great difference in the court’s assessment on whether the case calls for the issue of ad colligenda bona grant. In my judgment, the court should make an order under Section 7 of the PAO directing the siblings to produce and bring into the Registry the alleged will. An order to such effect was made on 24 August. The application for ad colligenda bona grant is adjourned to 7 September 2010.

31.  In the meantime, the Plaintiff seeks interim injunctive relief. As the injunction can only be granted by a judge in contentious proceedings, the proceedings should be carried on under HCMP 1554 of 2010.

32.  Based on the evidence before the court, applying the usual principles governing the grant of ex parte injunctions (which are equally applicable in the context of probate cases, see Ho Wai Yin v Cheung Yuet Yee HCAP 18 of 2003, 12 Feb 2004) I am satisfied that ex parte interim injunctive relief should be granted to protect the estate against the wrongful dissipation of its assets by the siblings. I granted such relief on 24 August 2010.

33.  If the Defendants have good reasons to oppose the Plaintiff's application, it is in everyone's interest that they should put forward the same to the court instead of being unresponsive.