YU YEE LUEN AND ANOTHER v. SO YU LUNG AND OTHERS

HCMP 487/2022

[2022] HKCFI 2403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 487 OF 2022

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J U D G M E N T

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1.  The plaintiffs are the two executrices and trustees of the estate of Madam Ho Ying named in her last will.  Madam Ho passed away in Hong Kong in June 2020.

2.  Under the distribution mechanism set out in Madam Ho’s will, Mr So Yiu Cho would be entitled to a 1/20 share in her residual estate (which, on a rough estimation, has a value of no less than HK$700,000) if he had survived Madam Ho and attained the age of 18, and each of his three uncles, who are the three defendants in this action, would also be entitled to a 1/20 share.  If Mr So had predeceased Madam Ho, each of the defendants would be entitled to a 1/15 share.

3.  Mr So was born in 1986.  He would be 34 years old by the time of the demise of Madam Ho.

4.  Mr So was last seen in or about November 1991 at his father’s worship ceremony in Hong Kong.  He was with his mother.  Since then their whereabouts are unknown.  They could not be located at their previous home residences. There is no record of death for them.  No one responded to the advertisements published by the plaintiffs in 2021 in search for Mr So and anyone who knows of his whereabouts.

5.  The plaintiffs were therefore unable to confirm whether Mr So was alive at the death of Madam Ho, which would trigger his entitlement to her residual estate and also affect the defendants’ share.  Distribution of the estate is held up and administration cannot be completed.

6.  This prompted the plaintiffs to make the present application 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.  Its effect is to protect the personal representatives and enable the estate to be distributed without having to wait until what might be unprovable can be proved.

7.  In the present context, the plaintiffs seek a Benjamin order to permit them to distribute the estate of Madam Ho on the footing that Mr So predeceased her without leaving any issue.

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?

9.  On the evidence before me, I am satisfied that the order sought by the plaintiffs should be granted.  The plaintiffs have gone to extensive lengths to ascertain Mr So’s whereabouts.  He has not been heard of by the relatives for the past 30 years.  There is no reason why he would choose not to be found. Over two years have passed since Madam Ho’s death.  In my view, the plaintiffs have exhausted the available avenues of inquiry.  There is no evidence that further efforts will yield positive results.  No useful purpose will be served by paying Mr So’s share into Court when it is highly unlikely that they would be claimed, and this will prejudice the defendants who will receive a lesser share as a result.

10.  The defendants have indicated that they do not contest the application. I will therefore make an order in terms of para 1 of the Originating Summons dated 27 April 2022.  Costs of the application be paid out of the estate of Madam Ho and taxed on a trustee basis.