RE LAM CHOI HING BILLY

HCAG 10342/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Application for Grant No. 10342 of 2000

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REASONS FOR JUDGMENT

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1.  On 25 October 2006, I made an order revoking the grant of probate issued in favour of the sole executor appointed under the last will of the deceased.  I ordered that letters of administration be issued in favour of Lam Fong Yin (one of the applicants), if so entitled.  I also gave the costs of the application to the applicants against the executor personally.  I gave brief reasons for my decision.  My full reasons are as follows. 

2.  The applicants, parents of the deceased and beneficiaries of the residuary estate, relied on two grounds in support of their application for the removal of the executor from his office and the grant of letters of administration with the will annexed in Mr Lam’s favour.  First, the executor had failed to do anything to administer the estate of the deceased after the grant; secondly, he was adjudicated bankrupt in 2004.

3.  The application was originally listed for hearing before the Probate Master.  The question then arose as to whether the applicants needed to ask for the revocation of the grant as well, which could only be dealt with by a judge.  The Probate Registry, treating the present case – a case of bankruptcy – as or equivalent to a case of incapacity, referred the applicants’ solicitors to para. 17.13 of Tristram and Coote’s Probate Practice (29^th ed.), which is to the effect that a grant of probate must be revoked in case of incapacity.  The application thus came before this Court.

4.  I do not think that paragraph applies to the present case.

5.  First, the paragraph deals with the situation where one of two or more grantees has become incapable of managing his or her affairs, in which case the grant must be revoked and a new grant will be made to the capable grantee or grantees remaining. 

6.  In a case where the sole grantee has become incapable of managing his or her affairs, however, the situation is in fact governed by paras. 17.64, 17.65 and 17.71 in the book.  In essence, those paragraphs say that in the situation described a new grant may be made without revocation of the existing grant.  The new grant will be a grant de bonis non and for the use and benefit of the incapable grantee limited during his incapacity.  In the event of the recovery of the grantee, the temporary grant, together with the original grant when it has remained at large, is lodged at the registry.  And upon evidence of recovery and proof that notice has been given to the temporary grantee, an order will be made that the temporary grant be noted that it has ceased and expired by reason of the original grantee having recovered his capacity and that the original grant be re-delivered to the recovered grantee. 

7.  In my view, that sets out the correct procedure in the type of cases described.  But it does not mean, however, that in an appropriate case where a sole grantee has become incapable, the court cannot revoke the original grant as a matter of discretion. 

8.  Secondly and more fundamentally, incapacity in the present context only means mental incapacity: Tristram and Coote at para. 4.34.  As for bankruptcy, as is pointed out in para. 4.33, an executor’s title is not defeasible by bankruptcy. 

9.  That said, again it does not mean that in an appropriate case the court cannot pass over the bankrupt executor and issue the grant in favour of someone else or, where bankruptcy only took place after issue of the grant, revoke the grant – the present case provides a good illustration.  But what it does mean is that bankruptcy per se does not require the revocation of a grant. 

10.  In the present case, the grant had been issued in 2001 and the executor was not adjudicated bankrupt until 2004.  During those three years before bankruptcy he had done practically nothing towards administration of the estate, apart from registering the grant in the land registry in respect of a property forming part of the estate of which he is the sole devisee. 

11.  Moreover, even prior to his bankruptcy he had disappeared from sight and all efforts to contact him failed.  After bankruptcy, he was and still is nowhere to be found.  In those circumstances, in my judgment, he has shown himself to be an unfit and unsuitable person to carry on with the administration of the estate.  His bankruptcy would tend to suggest – I would not put it higher than that given the lack of pertinent details – that he is not particularly good at managing financial affairs.

12.   In those circumstances, what the court ought to do as a matter of discretion was to revoke the original grant and order that letters of administration with the will annexed be issued in favour of Lam Fong-yin, if so entitled.  I so ordered.   I also ordered that the costs of the application be borne by the executor personally, to be taxed if not agreed.