In re CHING SIU WAI

1997, No.HCCA000168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

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J U D G M E N T

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1. This is an application for limited grant by Shirley Wai Man Hsu ("Hsu"), the Caveator to pursue a claim against one Leonora Chen ("Chen") in respect of a sum of about $12 million transferred by the Deceased to Chen before his death. Hsu alleged the said sum was given to Chen as trust money for the settlement of the Deceased's medical expenses, funeral and testamentary expenses and Estate Duty. Chen had already paid the Estate Duty on the said sum as she said it was a cash gift given by the Deceased shortly before his death.

2. The Deceased died on 3 June 1995. His last will dated 16 December 1994 had appointed Chen and Hsu as the two executrices of his will. There were certain disputes between the two executrices. They were mainly concerned with the payment of the Estate Duty. These disputes were settled by a consent order and I was told all the orders were fulfilled by Hsu except that Hsu did not fulfil the undertaking she gave to the Court that she would co-operate with Chen and apply together with Chen for the grant of the Probate. The aforesaid undertaking was coined in the following words :

"And upon the undertaking of the Defendant [Hsu] by Counsel that the Defendant will fully co-operate with the Plaintiff to make the joint application for the grant of Probate of the Estate of the Deceased and to use her best endeavour to act expeditiously in taking all reasonable steps required for the aforesaid purpose."

3. On 2 September 1997 Hsu's solicitors served on Chen's solicitors a warning to the Caveat. Chen thereafter entered an appearance to the warning and in accordance with r.44(10) of the Non-contentious Probate Rules, Cap.10, issued a summons for directions. Hsu put up the explanation for not making the joint application for general grant because of the way the said sum had been dealt with in the draft affirmation of executrices.

4. I agree with Mr C.Y. Li, Counsel for Chen, that Hsu cannot rely upon the dispute over the said sum and her application for limited grant to hold up the process of the general grant. Having made the consent order, Hsu should be estopped from proceeding with the application for a limited grant.

5. More importantly, if the dispute over the said sum is a live issue, it is all the more in the interest of the Estate that Hsu should commence administrative action to ask for Court's determination of the matter in her capacity as executrix of the estate after the general grant is obtained in pursuance of the consent order rather than to resuscitate the application for limited grant.

6. Chen had already paid the Estate Duty on the said sum on the basis that the same was a cash gift to her. If Hsu obtained her limited grant to sue on the same sum, Hsu would have to pay Estate Duty to the said sum again. With a general grant having been properly issued, Hsu can then seek the Court's direction for the issuance of proceedings for the determination of the nature of the payment. The Court will then have to consider whether there is good cause to justify the expenses of litigation to be borne by the Estate (see Re Beddoe [1893] 1 Ch.547, Supreme Court Practice, 1997, Vol.1 para.85/2/2).

7. The procedure which Hsu now seeks to adopt is in effect to try to ask the Court to authorise her to bring an action at the expense of the Estate without having had to satisfy the Court there is a good action and that it is proper to do so. The costs implication on the proposed action on the part of Hsu is further aggravated by the fact that Hsu now says that she wants to join the EDC as a party.

"It is not the practice to allow a person entitled to a general grant to take limited grant except by special permission and for very strong reasons" (see Tristram & Coote's Probate Practice 28th Ed. para.11.03). Hsu is indeed entitled to a general grant together with Chen and she can commence administration action on the said sum after obtaining the general grant as aforesaid. I cannot see any exceptional circumstances nor any strong reason to allow Hsu to be granted a limited grant for this specific reason. Accordingly Hsu's application for a limited grant is refused with costs against her in favour of Chen.

(David Yam)

Judge of the Court of First Instance,
High Court