RE SIU YING HUNG

HCAG 12472/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 12472 OF 2009

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D E C I S I O N

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Introduction

1.  At the directions hearing held on 18 December 2009, I granted leave to the Applicant to withdraw the present non-contentious application (“the present Application”) upon the application by the Applicant’s solicitor.

2.  After leave to withdraw was granted, I told Miss Yau, the solicitor for the Applicant, that I was disinclined to allow her to recover costs from her client and would give her an opportunity to explain. These are the reasons for my order.

Background

3.  The Applicant makes the present Application on 10 November 2009 for a grant of probate as one of the three executors named in the Deceased’s Will.

4.  Prior to the present Application, the other two executors named in the same Will had already made an application on 17 March 2009 (HCAG 2436/09) (“ the Earlier Application”) for a grant of probate in respect of the same estate of the Deceased.

5.  A requisition dated 26 November 2009 was sent to the solicitors (“the Requisition”), which is as follows:

“There is another application under HCAG002436/09 lodged in the same estate.  Please deal with the said application before consideration is given to this application.  (Your attention is drawn to para. 2.45 of Tristram and Coote’s Probate Practice, 29^th ed.)”

The Notice of Appointment

6.  Upon receipt of the Requisition, Solicitors for the Applicant issued a Notice of Appointment on 7 December 2009, and set out the Requisition in full without stating why an oral hearing was requested.

7.  As no directions had been proposed in the said Notice, I had no way to find out why a hearing was requested.

8.  Thus, for the purpose of saving time of a hearing, it is incumbent on the applicant or his solicitor to set out in a notice of appointment in a non-contentious probate application all the directions sought, be it for answering or dispensation with the requisitions so that the court would be fully apprised of the purpose for which the appointment is made. It is regrettable that Miss Yau has failed to do so in the present case.

The Hearing

9.  Miss Yau at the hearing submitted that the Applicant issued the present Application for the purpose of enabling the Applicant to join in the Earlier Application for a grant of probate. It was further submitted that due to the refusal by the applicants of the Earlier Applicant to let the Applicant join them in the Earlier Application, and further due to the Applicant’s distrust of other two executors, the Applicant therefore issued this Notice with a view to obtain an order either for joining the Applicant with the other applicants of the Earlier Application or for consolidation of the two applications.

Whether two Applications for the same estate appropriate

10.  The present Application is grossly improper and the purpose for which the Applicant has wished to achieve by it is totally ill-conceived.

11.  Para.2.45 of Tristram and Coote’sProbate Practice,(29^th ed.) is now found in para.2.46 of the latest 30^th edition. It states:

“Where there are two applications lodged in the same estate a grant cannot be issued until one of the applications is either refused or withdrawn.  If the parties are antagonistic, the matter may be brought before the district judge by summons under NCPR 27(6)”.

12.  The English NCPR 27(6) is equivalent to rule 25(2) of the Non-Contentious Probate Rules, Cap.10 (“NCPR”), which provides:

“A dispute between persons entitled to a grant in the same degree shall be brought by summons before the Registrar.”

13.  Since the Applicant is entitled to the same degree as the other two executors in the Earlier Application, he should have, instead of issuing the Later Application, issued a summons under rule 25(2), NCPR, for determination by the court if there were disputes between him and the two executors. He may also apply for a double probate for any unadministered estate after the applicants of the Earlier Application have obtained the grant

14.  Accordingly, neither the present Applicant nor the Notice of Appointment could serve the purpose for which the Applicant has wished to achieve.

Wasted Costs

15.  For the reasons above, I consider Miss Yau has totally wasted the costs of the Applicant in making the present Application, and issuing the Notice of Appointment. It is a just case for disallowing her to obtain costs from the Applicant.

16.  At the hearing, Miss Yau agreed to waive the costs incurred by the Notice of Appointment. As for the costs of the present Application, she asked to be given an opportunity to explain.

17.  Hence, I direct Miss Yau to attend on 2 February 2010 at 11am with 30 minutes reserved to give reasons as to why I should not deprive her of the costs in respect of the present Application.

18.  I further direct (with Miss Yau’s consent) the circulation of this Decision.