LI CHI PING v. SIN KING

HCCA 002061/2022

[2023] HKCFI 1929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO HCCA 002061 OF 2022

_______________________

______________________

BETWEEN

______________________

__________________

DECISION

__________________

Introduction

1.  Before this Court is a summons issued by the Caveator on 16 August 2022 (“Summons”) seeking, amongst others, the following orders:

(1) the Person Warning Sin King (“Madam Sin”) be passed over as executrix of the will of the Deceased; and

(2) Mr Wong Tak Shing, a solicitor, be appointed as an independent administrator pursuant to section 36 of the Probate and Administration Ordinance (Cap 10) (“Cap 10”) to administer the estate of the Deceased (“Estate”)

Brief Background

2.  The Deceased and Madam Sin were lawful husband and wife and they had 3 children, namely two son (respectively “Yat Fung”, and “Yat Yu”) and a daughter (“Sau Yi”).

3.  The Deceased had worked as a policeman in Hong Kong before he immigrated to Sweden in 1975 followed by Madam Sin and the three children in 1976, although thereafter, they would return to Hong Kong from time to time. The Deceased ran a restaurant in Sweden and retired in about 1993.

4.  In September 2011, the Deceased came back to Hong Kong and he made a will dated 14 September 2011 (“Will”), which was prepared by his lawyer cousin, Ms Wu Lai May (“Ms Wu”). Thereafter, according to Madam Sin, the Deceased asked her to place the original of the Will in his safe deposit box at the Bank of Communications (Hong Kong) Limited (“Safe Deposit Box”) to which Madam Sin had right of access.

5.  The Deceased later died in Sweden on 10 March 2018, at the age of 78.

6.  Sometime before the Deceased’s death, he had informed Sau Yi that he had made the Will, which was in Madam Sin’s possession and that she was to ask Madam Sin for the whereabouts of the Will and to execute the same with Madam Sin as joint executrices.

7.  According to the Caveator, since the death of the Deceased, Madam Sin had been exhibiting hositility towards Sau Yi and unwillingness to work with Sau Yi to deal with the estate of the Deceased in Hong Kong pursuant to the Will. This was denied by Madam Sin.

8.  By the Will, the Deceased appointed Madam Sin and Sau Yi as executrices of the Will. The Estate consists of mainly the following assets in Hong Kong:

(1) Cash and/or Investment Fund kept at banks in the total value of about HKD 4m (“Cash”);

(2) Various landed properties in New Territories:-

(a) Lot 1395 s AB ss 3 in DD106;

(b) Lot 1427(B) s 2 in DD 106;

(c) 1/6 of Lot 1150 s A ss 2 RP, Lots 1337 & 1355 in DD 113

(3) the Deceased’s interests in Wu Chung San Tong

9.  Under the Will, the Deceased’s interests in Wu Chung San Tong were bequeathed to his two sons Yat Fung and Yat Yu in equal shares, and the residuary estate was bequeathed to Sin King and Sau Yi in equal shares. The residuary estate was worth about HKD 15.8m.

10.  Sau Yi died intestate on 28 March 2022, leaving her lawful husband, the Caveator in the present action. They were married in Sweden according to the laws of Sweden.

11.  Madam Sin has continued to reside in Sweden. Sau Yi was also residing in Sweden with the Caveator and their daughters prior to her death. The Caveator has continued to reside in Sweden since.

Events leading to the present application

12.  According to the Caveator and as mentioned earlier, since the death of the Deceased, Madam Sin had been exhibiting hostility towards Sau Yi and unwillingness to work with Sau Yi to deal with the Estate in Hong Kong pursuant to the Will.

13.  Madam Sin returned to Hong Kong in April 2018 bringing Deceased’s ashes to Hong Kong for burial. According to Madam Sin, the day before the burial ceremony, Sau Yi mentioned to her about the Deceased had left her some inheritance. Madam Sin said she was very angry about this as she considered that Sau Yi to be unfilial, and that she only cared about money at a time of sorrow. According to Madam Sin, out of impulse, at the burial ceremony of the Deceased in May 2018, she burnt the original Will.

14.  According to Madam Sin, after the burial ceremony of the Deceased, she started to think she needed legal advice and in June, she consulted Mr Alvin Chung (“Mr Chung”) of Messrs Tony Kan & Co (“TKC”). She was advised that the Will was still valid and that the first step was to apply for a copy of the Will be admitted to probate and to make the application jointly with Sau Yi. According to Madam Sin, she retained TKC to handle the application and she then returned to Sweden to arrange for translation and legalisation of the necessary documents including the Deceased’s death certificate, and that since about January 2019, she and Sau Yi had been cooperative in pursuing the contemplated joint application.

15.  There was in fact little progress in the intended joint application, and Sau Yi then passed away on 28 March 2022, by that time no joint application had yet been made.

16.  On 5 May 2022, the Caveator entered the present caveat at the Probate Registry. The Caveator also made an application for letters of administration of Sau Yi’s estate in Hong Kong to be granted to him, although at the date of the hearing, due to various requisitions raised by the Probate Registry, no grant had been issued yet.

17.  Eventually, Madam Sin, being the surviving executrix of the Deceased, applied on her own on 17 June 2022, under HCEA 45/2022 for a copy of the Will to be admitted to probate. On 25 July 2022, Madam Sin filed a Warning to the Caveator, who then entered an Appearance on 4 August 2022, and on 16 August 2022, issued the Summons before the Court.

The legal principles

18.  Section 36 of Cap 10 provides as follows:

“36. Appointment of administrator of intestate’s estate

Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

19.  As set out by A Cheung J, as he then was, in Re Ho Wai Man [2006] 4 HKLRD 421, section 36 applies to 4 different but overlapping situations:

(1) where a person dies wholly intestate as to his estate; or

(2) where a person dies leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate; or

(3) where the executor is, at the time of the death of such person, resident out of Hong Kong; or

(4) where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the deceased’s estate or of any part of such estate, other than the person who, if Cap 10 has not been passed, would by law have been entitled to a grant of administration of such estate.

20.  The Caveator relies on the above situations (3) and (4).

21.  Counsel Mr Ernest Koo, appearing for the Caveator, submitted that the words “necessary or convenient” in (4) above give the Court a broad discretion to be exercised in the best interests of the estate. In particular, he had referred the Court to Re Estate of Loo Che Chin [2013] 2 HKLRD 739 in which Poon J, as he then was, had stated the following:

“10. As said, what constitutes the circumstances to engage the court’s discretion to pass over the executor under the ‘necessity or convenience’ ground must depend on the particular facts of the case before the court. In short, it is a fact-sensitive question to be determined essentially on the actual circumstances of the case. The court will approach the evidence objectively and with a good dose of common sense to see if on the facts of the case the ‘necessity or convenience’ ground is made out.”

(emphasis added)

22.  There was no dispute in relation to the above general legal principles.

23.  The main thrust of the submissions of Counsel Ms Alison Choy appearing for Madam Sin was that the Caveator lacked locus to make this application, in that at best, the Caveator was an intended personal representative of Sau Yi.

Whether the Caveator is a proper person to make this application

24.  It was pointed out by Ms Choy that the Caveator stated in his 1^st affirmation that he had been taking steps to apply for the letters of administration of the estate of Sau Yi in Hong Kong, and in his 2^nd affirmation, he stated that he had made the application and would update the Court in respect of any progress in the application, and yet there was no update at the hearing. It was thus submitted by Ms Choy as the application had not been granted, it was uncertain whether it would be granted, and that an “intended” personal representative of “future” personal representative would not suffice for the present purposes.

25.  However, it was held by Poon J, as he then was, in Re Estate of Haque Shaquil [2012] 1 HKLRD 689, as follows:

“23. Whether a person is qualified to take out the application must depend on the language of the relevant statutory provision. The court needs to examine the provision to see whether it identifies the category of persons who may make the application : Deloitte, supra, per Lord Millett at p.1611B. Here section 36 does not define the qualified persons who may make the application. The court has to look at the particular circumstances of the case to see if the applicant is qualified. The same is true for the consideration if the applicant is a proper person in the sense that he has a legitimate interest in the relief sought.”

26.  In Re Estate of Haque Shaquil, the caveator claimed to be a creditor of the estate, and the person warning was the sole beneficiary and sole executor appointed under the will. The application of the caveator under section 36 was subsequently granted as Poon J as he then was satisfied that the caveator had a legitimate interest in the relief sought.

27.  Having considered the evidence in the present case, I am satisfied that the Caveator has a legitimate interest in the relief sought, for the following reasons:

(1) As mentioned earlier, Sau Yi was entitled to half of the residuary estate;

(2) Upon her death, her entitlement to the residuary estate of the Deceased would become part of her own estate.

(3) The Caveator was lawfully married to Sau Yi under the laws of Sweden, and there was no challenge to the validity of their marriage;

(4) The Caveator, being the surviving spouse of Sau Yi, he ranks first in priority in applying for a grant of letters of administration of Sau Yi’s estate under rule 21 of the Non-Contentious Probate Rules, Cap 10A;

(5) Under section 4 of the Intestates Ordinance, Cap 73, he is a beneficiary to Sau Yi’s estate.

28.  Having considered the above, whether the Caveator has contrary interest to the Estate of not, I am of the view that he has a legitimate interest in the relief sought, and is a proper person to make the present application.

Situation (3) : whether the executor was, at the time of the death of the Deceased, resident out of Hong Kong

29.  Ms Choy complained that it was only until Mr Koo’s Skeleton Submissions were lodged that it was made clear as to which of the 4 situations in section 36 the Caveator was relying on. This complaint had no ground since it was obvious from the Caveator’s affirmations that situations (1) and (2) are not applicable in the present case.

30.  It was not disputed that Madam Sin was residing out of Hong Kong when the Deceased passed away in Sweden. It was however submitted on her behalf that even though she was resident out of Hong Kong at the time when the Deceased passed away, since then, she had spent an extensive amount of time in Hong Kong to handle matters concerning the Estate:

(1) In May 2018, Madam Sin was in Hong Kong to attend the Deceased’s funeral and after burning the original Will, she stayed in Hong Kong in June 2018 to instruct lawyers to handle the relevant paperwork;

(2) In November 2019, Madam Sin returned to Hong Kong to handle the propounding application and remained in Hong Kong for 15 months with a view to concluding the joint application;

(3) Even when she could not return to Hong Kong during the Covid-19 travel restrictions, she had been handling the joint application in Sweden remotely.

31.  In the Will, the Deceased stated that he was domiciled in Hong Kong. Whether the Deceased and Madam Sin regarded Hong Kong as their place of domicile, the evidence clearly showed that Madam Sin was not residing in Hong Kong at the time of the Deceased’s death. The evidence in fact showed that up until the hearing, Madam Sin was not habitually resident in Hong Kong, whether at the time of the Deceased’s death and/or thereafter, and that she would only return to Hong Kong for specific purposes.

Situation (4) – Whether necessary or convenient

The burning of the original Will

32.  It was submitted on behalf of Madam Sin that she burned the original Will purely out of impulse and because she did not know how to deal with her emotions, and not because she did not wish to administer the Estate.

33.  However, the evidence appeared to show that Madam Sin had already retrieved the original Will from the Safe Deposit Box in April 2018, and that on the same day, she had gone to consult Mr Chung who had explained to her the contents of the Will[1]. She then told Mr Chung that she would go back to him later, as she was still thinking of how to deal with the Will. Mr Chung then gave her back the original of the Will without making a copy thereof. It was after this consultation that Madam Sin then burnt the Will at the burial ceremony in May 2018 and her then evidence was that she burnt the original Will thinking the original Will should disappear with the Deceased as if the Deceased had never made it[2].

34.  In June 2018, Sau Yi instructed Ms Wu, who was then working at Howell & Co, to apply for the probate of the estate of the Deceased and in this connection, a letter was sent to Madam Sin on 14 June 2018 (“1^st Letter”)[3], asking Madam Sin, amongst other things, whether the original Will was still in her possession, and whether she would agree to proceed with the application of the grant jointly with Sau Yi as co-executrices. As set out in the 1^st Letter, Sau Yi had told Madam Sin that Sau Yi had kept a copy of the Will of the Deceased after a search of the personal belongings of the Deceased at his residence in Stockholm, Sweden on about 11 March 2018. Further, it was stated in the letter that when Madam Sin was in Hong Kong, Ms Wu had called Madam Sin to enquire about the funeral date and burial details during which she had asked Madam Sin the whereabouts of the original Will. Madam Sin replied that she had torn it up, and when reminded that she needed to apply for probate, Madam Sin had told Ms Wu that she had already instructed a lawyer to do so.

35.  The 1^st Letter was sent to Madam Sin both at her address in Hong Kong and her address in Sweden, but there was no response.

36.  It later transpires that Madam Sin had gone back to Mr Chung in June 2018 to seek his advice as to how to obtain a grant of representation of the estate of the Deceased, but was advised by Mr Chung the Will was still Deceased’s valid last will if the Deceased had not made any subsequent wills. According to Madam Sin, she was then advised by Mr Chung to apply for a copy of the Will be admitted to probate jointly with Sau Yi. Madam Sin said she then retained TKC to handle the matter and returned to Sweden.

37.  However, notwithstanding her evidence, there was no sufficient evidence that Sau Yi was informed at that time by Madam Sin or TKC that the two of them were to jointly make an application and/or what steps were taken by Madam Sin.

38.  Not having heard from Madam Sin, Sau Yi then instructed Howell & Co to write to the banks to seek information of the Deceased’s bank accounts to prepare an application for grant.

39.  Pausing here, from the above evidence, it was clear that Madam Sin had already been to see Mr Chung the day she retrieved the original Will from the Safe Deposit Box in April 2018, and had taken it to show to Mr Chung who had explained to her the contents. Madam Sin must know it was an important document. She chose not to leave the original with Mr Chung and she knew that Mr Chung did not keep a copy, and yet she then decided to burn the original without apparently keeping a copy herself. Further, according to the 1^st Letter, Madam Sin told Ms Wu that the “tore up” the original Will. Anyway, I do not find Madam Sin’s action of allegedly burning the original Will, if so, was an impulsive act. In my view, it was an extremely irresponsible act on the part of an executrix, as such an act would no doubt cause delay and additional costs in the application for probate and the administration of the Estate, which Madam Sin, as one of the executrices, is under a duty to act expeditiously. In my view, her action was clearly not in the interests of the beneficiaries.

Madam Sin’s hostility towards Sau Yi

40.  As seen, Madam Sin consulted her own solicitors TKC and to retain them to handle the application for grant instead of jointly instructing together with Sau Yi, Ms Wu of Howell & Co who had prepared the Will for the Deceased.

41.  In light of this, and possible conflict, Sau Yi was then advised by Ms Wu to also instruct separate solicitors, namely Christine M Koo & Ip (“CKI”) to represent her.

42.  What was clear was that notwithstanding that according to Madam Sin, she had retained TKC to proceed with applying with the grant in June 2018, Sau Yi was not informed.

43.  According to Madam Sin, she was angry with Sau Yi for raising matters concerning the Deceased’s estate before the cremation ceremony. Even so, there was no reason why Madam Sin should then be uncooperative. As said, her duties as one of the executrices was owed not only to Sau Yi but all the beneficiaries of the estate.

44.  It was not until 7 January 2019 that TKC wrote to CKI asking Sau Yi for a copy of the Will. This was duly sent to them by CKI on 17 January 2019. Thereafter, there was no further progress until 19 March 2019 when TKC then wrote and asked whether CKI had already to obtained confirmation from banks regarding Deceased’s bank accounts. On 19 May 2019, CKI wrote to put on record that Sau Yi had no objection to make a joint application for the grant and asked TKC to send them the draft affirmation. It was not until 8 August 2019 that TKC finally replied. They sent two letters, the 1^st one was to ask CKI for the banks’ confirmations before TKC was to proceed with the application. This was followed by a 2^nd letter indicating that TKC had no objection to a joint application and asked CKI for their draft application documents.

45.  Thus, notwithstanding that in May 2019, CKI had already asked TKC to send them the draft application, in August 2019, TKC then wrote and asked CKI to send them the draft application. They seemed to “pass the ball” back to CKI. It was not clear why.

46.  Thereafter, there was no reply from CKI and on 17 October 2019, TKC then wrote if there was no response, then Madam Sin would proceed with the application on her own without further reference to Sau Yi. This prompted a telephone conversation between the handling solicitors of each firm, and on 24 October 2019, CKI sent to TKC those documents in their position for TKC to prepare the draft application and affirmation. It was further indicated by CKI that they would liaise with Sau Yi to come to Hong Kong to make the application with Madam Sin jointly. On 29 October 2019, TKC then sent to CKI the draft affirmation by the executrices and all other necessary draft documents[4].

47.  On 13 December 2019, TKC sent to CKI Madam Sin’s affirmation dated 8 November 2019 for making the necessary application for an order under section 53 of the Non-Contentious Probate Rules, Cap 10A admitting to proof a will contained in a copy of the Will against CKI’s undertaking to make the application in the name of CKI within 14 days[5]. On 18 December 2019, CKI had replied to say they would file the documents upon completion of inspection of the Safe Deposit Box.

48.  However, in early 2020, the out break of Covid-19 had reached Hong Kong. Sau Yi was planning to come to Hong Kong to open the Safe Deposit Box, but this was put off. CKI duly informed TKC on 14 February 2020. In July 2020, TKC informed CKI that Madam Sin was anxious to come back to Hong Kong to attend to the opening of the Safe Deposit Box. There was no objection from Sau Yi, and although she was not able to return, CKI had instructions to attend on her behalf. Thereafter, there was no further response from TKC, or from Madam Sin.

49.  Madam Sin admitted that she came back to Hong Kong in November 2019 to make her affirmation, and that she had again returned to Hong Kong in late October 2021, remaining here for about a year.

50.  On 30 November 2021, Madam Sin instructed Pansy Leung Tang & Chua (“PLTC”) to act in place of TKC, and an appointment was eventually made for the opening of the Safe Deposit Box on 26 January 2022, with the bank and the Estate Beneficiaries Support Unit of the Home Affairs Department. Subsequently, the appointment had to be cancelled by the Estate Beneficiaries Support Unit and it was not until 17 February 2022 that the inspection of the Safe Deposit Box was conducted by Madam Sin.

51.  Although Sau Yi had planned to return to Hong Kong as well, she was prevented from doing so not only because of covid-19 but also because of her own liver cancer. Sau Yi then passed away on 28 March 2022, and CKI had no further instructions/or authority to act for Sau Yi.

52.  Having considered the evidence, I am of the view that there was hostility on part of Madam Sin towards Sau Yi, and that it was not caused only by anger towards Sau Yi enquiring about her inheritance. It appeared that it stemmed from probably the resentment on Madam Sin’s part that the Deceased had appointed Sau Yi to be a co-executrix with Madam Sin and that he had made equal provisions for Sau Yi as for Madam Sin. In any event, all such negative feeling had lead to uncooperation on the part of Madam Sin. It would have saved considerable time and costs had Madam Sin responded to the 1^st Letter and accepted Sau Yi’s then suggestion to make a joint application for probate. Even if Madam Sin did not with to instruct Ms Wu, there was no reason why she could not have suggested the two of them to appoint another firm of independent solicitors to handle the joint application for probate. Madam Sin chose not to respond at all. Not only did Madam Sin not respond, she then went ahead on her own to retain TKC to make application without informing Sau Yi.

53.  Even though it appeared that after the telephone conversation between Sau Yi’s and Madam Sin’s respective handling solicitor, the parties finally agreed to making a joint application, but for some reasons, despite TKC indicating that they would proceed, they then asked CKI to proceed instead. As seen in the letter dated 29 October 2019, Madam Sin was the one who had in her possession most of the information in relation to the Deceased’s assets, it would have make more sense for Madam Sin to take the lead in making the joint application, and further as Madam Sin was in Hong Kong in November 2019, there was no reason why she could not attend to the opening of the Safe Deposit Box during that visit. All this could have been done prior to the covid outbreak. There was also no response by TKC to CKI’s letter of 10 July 2020 asking to be informed of the date fixed for the opening of the Safe Deposit Box.

54.  Having considered all the evidence, I am satisfied that there was hostility and a lack of cooperation on the part of Madam Sin toward Sau Yi, which had cause unnecessary delay in making the joint application.

Conclusion on whether necessary or convenient

55.  Even though now that Sau Yi is dead, Madam Sin can apply as sole surviving executrix, the fact is that it was not the Deceased’s intention to appoint her as sole executrix. Further, the fact that there was no agreement between Madam Sin and the Caveator demonstrates that there is a deep distrust between the two, in particular in light of the present litigation and the past hostility towards Sau Yi and Madam Sin’s lack of co-operation. The fact is that Madam Sin does not live in Hong Kong, nor does the Caveator and Sau Yi’s children. The parties have been relying heavily on their respective solicitors in Hong Kong and instructions have to be given remotely.

56.  Having considered the age of Madam Sin and her hostility towards Sau Yi and her lack of co-operation, I find it is necessary and convenient that she be passed over and that it is in the interests of all beneficiaries that an independent professional person be appointed to apply for probate of the Estate. The sons have supported Madam Sin to continue to be the executrix and apparently their concern was that they did not want an outsider to be registered as the legal owner of their landed properties. I do not think this is a valid reason for concern, as upon the independent person being appointed and upon letters of administration being granted to him, he could arrange to vest the Deceased’s share in the Wu Chung San Tong directly into the names of the sons as tenants in common pursuant to Clause 4 of the Will.

Conclusion

57.  There were no submissions by Ms Choy, Counsel appearing for Madam Sin, on the proposed candidate, a solicitor Mr Wong Tak Shing. Mr Wong’s hourly rate of HKD 4,000, plus disbursements were in my view reasonable.

58.  In light of all said above, I am prepared to make an order in terms of paragraphs 1 and 2 of the draft order, subject to the above hourly rate and further subject to the statutory cap of the costs in section 60 of Cap 10.

59.  As for costs of the Summons, as the Caveator is the successful party, I make an order nisi that Madam Sin to personally pay the Caveator’s costs including all costs reserved, to be taxed if not agreed, on party and party basis. The costs order nisi shall be made final after 21 days of today.