RE WONG FUNG FONG and TANG TIM FUK, the co-administrators of the estate of LIN FAT WONG also known as WONG LIN FAT, the deceased

HCMP 1750/2024

[2024] HKCFI 2686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1750 OF 2024

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D E C I S I O N

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INTRODUCTION

1.  This is a probate matter.

2.  It concerns the estate of the late Lin Fat Wong, also known as Wong Lin Fat (黃連發) (“the Deceased”).

3.  The applicant, who are the co-administrators of the estate of the Deceased (“the Applicant”), by way of an ex-parte originating summons dated 10 September 2024 (“the OS”), ask the court to authorize them to administer and distribute the estate of the Deceased on the footing that the Deceased’s widow Madam Man Mei Kam (文美金) (“MMK”), being the prospective beneficiary of the estate died intestate and without any issue.

BACKGROUND

4.  On 14 June 1999, the Deceased passed away in St Thomas’ Hospital Lambeth, London, England at the age of 74. Two days before he died, he managed to make and execute a will dated 12 June 1999 as his last will and testament (“the Will”).

5.  On 29 December 2021, the Applicant was granted Letters of Administration with the Will annexed under HCAG005636/2020. Under the distribution mechanism set out in the Will, the Deceased bequeathed the rental income of a property, net of all outgoings and expenses, to his second wife and widow MMK until her death.

6.  However, the Applicant between them do not have any means of contacting MMK. To the best of the Applicant's knowledge, MMK was born in or about 1942 in Hong Kong. She was therefore believed to be around 57 years of age by the time of the death of the Deceased. If she was still alive today, she would be around 82 years old. It is not believed by the Applicant that she has any issue.

7.  According to the Applicant, despite extensive efforts, time and resources to locate MMK, it was to no avail. Hence, the Applicant is unable to confirm whether MMK is alive or dead today.

8.  The problem with not able to find MMK is that the distribution of the estate had been held up and the administration of the estate itself cannot be completed for the past 25 years. Hence, the estate of the Deceased is still in a state of limbo.

DISCUSSION

9.  By the OS, the Applicant is seeking for a “Benjamin Order”, derived from the case of Re Benjamin [1902] 1 Ch 723, which permits the personal representatives to distribute the estate on the footing that certain events have or have not happened.

10.  The Applicant seeks a Benjamin Order on the footing that MMK died intestate without any issue.

11.  In the OS, the Applicant asks for inter alia:-

(i) The Applicant be authorised and be at liberty to administer and distribute the estate of the Deceased on the footing that MMK being the prospective beneficiary of the estate died intestate without any issue;

(ii) Further and/or alternatively, the Applicant be authorised and be at liberty to administer and distribute the estate of the Deceased upon payment into Court pursuant to Section 62 of the Trustee Ordinance (Cap. 29) (“the TO”) a sum as the court thinks fit; and

(iii) The court's determination in the manner the entitlement of MMK (if any) in the estate of the Deceased ought to be dealt with or disposed of.

12.  The Applicant filed two supporting affirmations, namely, the affirmation of Wong Fung Fong (黃鳳芳)(“Wong”), the first named co-administrator, filed on 1l September 2024 together with the exhibits therein and the affirmation of Tang Tim Fuk (鄧添福)(“Tang”), the second named co-administrator, filed on 20 September 2024.

13.  Wong is the only other surviving beneficiary under the Will. As such, the Applicant believes and I accept that there is no other interested party to be joined as defendants in the present application, the nature of which shall therefore remain an ex-parte application.

14.  Whilst it is typical for directions as to the further conduct of the proceedings to be made in the first hearing of the OS, Mr William Kwok, the Applicant’s counsel, submits and I accept that this court is well equipped with the power of summary disposal of the OS. This is enshrined in Order 28, rule 4(1) of the Rules of the High Court (“RHC”) which is preserved under 2 (a) of Practice Direction 5.8. This can be exercised in favour of a party like the Applicant in this instance as the nature of the case may warrant: See Navig8 Chemical Pools Inc v Inder Sharma, unreported, HCMP 2885/2016 (14 February 2017; Anthony Chan J).

Applicable Legal Principles

(i) Nature of Benjamin Order

15.  As submitted by Mr Kwok, the landmark case in this area is Re Benjamin [1902] 1 Ch 723. The legatee therein, Philip David Benjamin, is entitled to a share of the estate on surviving the testator, who however disappeared after taking a train to London, prior to the demise of the testator. The court in that case held that “he must be presumed to be dead” (p. 725) and granted an order permitting distribution of the estate on the following terms at p 726:-

“In the absence of any evidence that the said P.D. Benjamin survived the testator, let the trustees of the testator's will be at liberty to divide the share of the testator's estate devised and bequeathed in favour of the said P. D. Benjamin, his wife and children, upon the footing that P. D. Benjamin was unmarried and did not survive the testator.” (emphasis added)

16.  While the order in Re Benjamin was made on the footing that “the beneficiary predeceased the testator without any issue”, the situation to invoke the principles and jurisdiction are much wider.

17.  In Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (22^nd ed.), the rule is stated in flexible terms :-

“Various expressions have been used to describe the circumstances in which the jurisdiction will be exercised. It has been said, for example, that an order will be made where the proposed distribution reflects the practical probabilities of what has happened or is based on the probable inferences, or where there is satisfactory prima facie evidence of practical impossibility of proof of the facts or events in question or where every reasonable step has been taken to trace the individuals in question and it was most improbable that any such individual would ever establish a claim. Where there remains a theoretical possibility of beneficiaries appearing despite their long absence, the court will consider whether it is just that the enjoyment by the known beneficiaries of their apparent interests should be further postponed.” (emphasis added)

18.  As Mr Kwok has submitted correctly, a Benjamin Order does not vary or destroy beneficial interests; it merely enables trust property to be distributed in accordance with the practical probabilities, which are different from that entertained by the testator: Re Green's Will Trusts [1985] 3 All ER 455 at 462e.

19.  Mr Kwok has very helpfully produced the following cases to demonstrate that the rule has been applied flexibly to cater for the practical impossibility of proof of certain fact or event:-

(i) In Re Gess [1942] Ch. 37, the court extended the application of the principles in Re Benjamin to proof of debts and liabilities, allowing administrator to distribute and deal with the estate on the footing that all debts and liabilities of the estate had been ascertained, because at the material time, the administrator was unable, owing to the outbreak of World War II, to advertise for creditors of the deceased in Poland which was occupied by Germany;

(ii) In Re Newson-Smith's Settlement [1962] 1 W.L.R. 1478, the court applied the principles to a marriage settlement, pursuant to which the husband covenanted to pay some money to the trustee on trust for his wife and himself for life, and subject thereto, on trust for his children. The husband disappeared in the 1920s (after the execution of the marriage settlement). The court granted the Benjamin Order, allowing the trustee to distribute the property on the footing that the husband was dead;

(iii) In Re Pritchard Stockbrokers Ltd [2019] EWHC 137 (Ch), the court extended the application of the principles to distribution of trust fund on the footing that entitlement is confined to known members. In this case, Pritchard Stockbrokers Ltd (“PSL”) was subject to a regulatory notice, obliging it to cease its trading activities. The said notice also constituted “a Primary Pooling Event”. The consequence of this was that the client money held by PSL was treated as pooled and that the individual entitlement of any given client to specific funds was replaced by a claim on the pooled fund. The client money pool comprised £23.5 million plus interest. The special administrators took steps to assess the client money entitlement of each client, however, 2,463 clients with potential claims (having a possible value of £810,862.94) against that fund had not been agreed. A final distribution cannot be made until these claims are resolved.

Norris J granted an order of distribution to known members and the court considered that:-

“13. The problem of administering a trust where the beneficial interests in the fund cannot be ascertained with certainty is not new. The court

‘if satisfied that every reasonable step had been taken in an attempt to trace individuals entitled to the fund, and that it was most improbable that any individual would ever establish a title " (per Russell LJ in Re Lowe’s W T [1973] 1 WLR 882 at 887)’

will exercise it supervisory jurisdiction over the administration of trusts to enable the trust property to be distributed according to practical probabilities. The court will permit the administration of the fund “on the footing” that entitlement is confined to known members.” (emphasis added)

(ii) Application in Hong Kong

17.  According to Mr Kwok’s submission, of which I agree, the application of Re Benjamin in Hong Kong could be traced back to the case of Chan Wing Sze v Chau Kin Hung [1983] 1 HKC 518, wherein the late Mantell J considered it more appropriate to grant a Benjamin Order upon the footing that the testator's son “has died and at date of his death was unmarried and without issue and that he did not survive the deceased” as opposed to drawing an inference form the evidence available as to the time of death of the testator's son therein because the court will not make any declaration that goes beyond that which is necessary: see 520F-521A.

18.  In Yu Yee Luen & Another v So Yu Lung & others [2022] HKCFI 2403, Deputy High Court Judge Jonathan Chang SC, after considering Re Benjamin, is satisfied that the plaintiff had exhausted available avenues of inquiry to locate the missing beneficiary and granted a Benjamin Order. In determining the adequacy of inquiries, the court held that seven factors should be considered :-

“8. In cases of missing beneficiaries, the Court would consider the sufficiency of inquiries made by the personal representatives. Whilst this no doubt depends on the facts of each case, the following questions may assist in determining the adequacy of those inquiries (see Re Wieckoski Estate, 2013 SKQB 297 at [23]):

(1) Why is the question being asked? Is there specific evidence that there is or may be a missing beneficiary, or does the question arise as a result of the circumstances?

(2) How much time has elapsed since the death of the testator?

(3) What are the specific steps that have been taken, and over what period of time, to answer the question?

(4) Who has conducted the enquiries? Were they appropriately qualified to investigate the matters at issue?

(5) Do the enquiries take due account of matters such as the possible location of the beneficiary or of potential evidence as to the matter at issue?

(6) Is it possible that pursuing further avenues of enquiry, or deferring the decision, might result in a claim or generate further information? What is the cost and delay associated with pursuing those avenues, and what is the likelihood they may succeed?

(7) What is the amount at stake? ” (emphasis added)

19.  In HSBC Trustee (Hong Kong) Limited, the sole executor and trustee of the Deceased's Estate v Lam Moon Wing & others [2023] HKCFI 199, The Hon K Yeung J granted a Benjamin Order having considered the following:-

“5. I have read the affirmations placed before me, and in particular that of Susanna Fung of 12 April 2022. I have also considered the authorities cited before me, which include Re Benjamin [1902] 1 Ch 723, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (21^st ed.), §65-18, Re Green's Will Trusts [1985] 3 All ER 455 and Re Instant Cast Loans Ltd [2021] 1 EWHW 1164 (Ch). I note that extensive efforts have been made in tracing HKP. He has not been. In fact he has not been heard from or of for years. Given those extensive but unsuccessful efforts, the relatively small size of the residuary Estate, the preference of most of the surviving beneficiaries, and the costs analysis provided, I am satisfied that this is an appropriate case for this Court to make the Benjamin Order sought” (emphasis added)

Actions taken by the Applicant

20.  In my judgment, there is credible evidence in this case to establish the fact that the Applicant has themselves or through their solicitors caused extensive efforts to search and locate MMK but all to no avail. According to Wong, he has taken the following steps diligently:-

(i) MMK was last seen in the Deceased's funeral in late June 1999. Wong had made inquiries with those attendees whom he knows and are still alive. However, none of them knew where she was;

(ii) Tang has never met MMK and had no means of contact;

(iii) There is no record of probate of MMK in Hong Kong, solicitors for the Applicant having carried out a search at the Probate Registry on 17 March 2020 for any deceased with the name of “Man Mei Kam”, “Mei Kam Man” or “文美金”;

(iv) There is no confirmed record of probate of MMK in the UK;

(v) There is no confirmed record of death of MMK in Hong Kong;

(vi) Despite two pieces of advertisement published in Sing Tao Daily and in The Standard on 16 July 2024 in search for MMK and anyone who knows of her whereabouts, no one responded;

(vii) Wong had personally attended the Deceased's address of Flat 18, John Penry House, 1A Marlborough Grove, London SE1 5JS England on two occasions in 2018, no one at that address answered the door, nor did the neighbours; and

(viii) Solicitors for the Applicant obtained the conveyancing documents of the two properties of the Deceased. However, the document did not reveal any other addresses that are reasonably linked to MMK.

21.  On the other hand, soon after Deceased's funeral, MMK had surrendered the keys of the two properties of the Deceased to a villager. It would appear that MMK had no intention to claim any interests in those properties.

22.  In the circumstances, Mr Kwok submits and I so find that, given (i) the sufficiency of those extensive but unsuccessful efforts to locate MMK; (ii) the relatively small size of the residuary estate; (iii) the act of surrendering the keys by MMK; (iv) the fact that MMK has not been seen or heard for 25 years; (v) the preference of the surviving beneficiary; and (vi) the costs and time of further inquiries, with no guarantee that useful information or result would be obtained; and (vii) administration of the estate has been delayed long after the demise of the Deceased in 1999 contrary to the testamentary wishes of the Deceased, this is an appropriate case to grant a Benjamin Order, so that the estate can be distributed without having to wait until what might be unprovable can be proved: see Yu Yee Luen at p6.

23.  Under the aforestated circumstances, there is in my view no need to adopt the alternative formula proposed by the Applicant, ie for them to pay into court the sum of HK$1,110,022 being the entitlement of MMK (ie the rental income net of all outgoings and expenses) if she was alive. I agree with Mr Kwok that no useful purpose will be served when it is highly unlikely that the sum would eventually be claimed. In my judgment, this will only prejudice the beneficiary of the Will, who will receive a lesser share.

CONCLUSION

24.  By reason of aforesaid, I grant an order in terms of the first paragraph of the OS, with costs be paid out of the estate of the Deceased and taxed on a trustee basis.

25.  Lastly, I would like to thank Mr Kwok for his very helpful and well written submissions.