MAN WO PING AND OTHERS v. MAN KWOK WAN AND OTHERS

HCMP No. 2285/1998

HEADNOTE

New Territories Land - Succession - Effect of Letters of Administration - Administration of Estate

The deceased died leaving two pieces of property in the New Territories. He was survived by his wife, 5 sons and two daughters. The sons obtained approval by the New Territories administration to inherit the land by local custom under the New Territories Ordinance, Cap. 97. By some misunderstanding, one of the sons also applied for and obtained letters of administration. For fear that the letters of administration would give the female survivors of the deceased the right to inheritance contrary to local custom, the sons applied for order to revoke the letters of administration and declaration that the letters of administration is null and void.

Held: The application is misconceived. Letters of Administration does not define the right of persons entitled to inheritance. The purpose and effect of Letters of Administration is only to appoint and authorize the administrator to administer the estate of the deceased according to the law of succession, whatever the law may be.

HCMP No. 2285/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MICELLANEOUS PROCEEDINGS NO. 2285 OF 1998

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J U D G M E N T

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This case emerged as a potentially tricky one - bringing up the highly controversial issue of whether female survivors of indigenous inhabitants of the New Territories have the right to succession. As it turned out, none of the ladies involved contested the matter. Nonetheless, I refused to grant the relief sought by the personal representatives of the deceased. The reasons are as follows.

2. The deceased MAN Sum (or Sham) Kuen (or Kun) died on 6th July 1985. He was an indigenous inhabitant in the New Territories. He was survived by his second tin fong wife, five sons and two daughters. According to a certificate issued by the Estate Duty Office, the estate of the deceased comprised of two pieces of property - one comparatively more valuable piece that straddles Demarcation Districts No. 99 and 102 in Yuen Long ("the larger property") and one smaller piece situated wholly within Demarcation District No. 102 ("the smaller property").

3. On 12th May 1986, all five sons of the deceased applied to the Yuen Long District Office in writing for approval by way of local succession to the estate of the deceased under section 17 of the New Territories Ordinance, Cap. 97. On 2nd July 1987 the Yuen Long District Office issued a Letter of Approval ("the Approval Letter") to the five brothers who duly accepted succession and caused the Approval Letter to be registered with the Yuen Long District Land Office on 21st August 1987 in respect of the larger property. There upon, the larger property became vested in the five brothers as tenants in common.

4. In August 1987, due to some misunderstanding, one of the sons applied to the High Court Probate Office for Letters of Administration. On 22nd December 1987, the Letters of Administration was granted and subsequently registered with the Yuen Long District Land Registry. The First Defendant herein is the administrator. The four Plaintiffs are his brothers.

5. For some reason, the Plaintiffs became worried that the grant of Letters of Administration would give their mother and two sisters the right to a share in the estate of the deceased. Hence on 21st May 1998 they applied to the court by way of originating summons for an order revoking the Letters of Administration and declaring the said Letters of Administration null and void. When the case went before Recorder Mr. K. Kwok for determination on 14th July 1998, the learned Recorder directed the Plaintiffs to join their mother and two sisters as defendants so that the ladies may make representation if they wish. Papers were then duly served on the ladies. However, two of the ladies indicated that they would not contest the application by the Plaintiffs and one lady has not even filed the acknowledgement of service. The Defendant, who is the administrator under the Letters of Administration, does not contest the application either. In other words, none of the interested parties are minded to oppose the revocation of the Letters of Administration.

6. In the state of play as I have described, the case came before me for final order. Before I decided what to do, Miss Hui for the Plaintiffs indicated to me that the Plaintiffs are minded to deal with the smaller property according to ordinary rules of succession, i.e. not by local custom. I then suggested to counsel that she should look into the law a little more before proceeding further. The matter was then stood down briefly and counsel was referred to the case of Re Ward, National Westminster Bank Ltd v. Ward and Others [1971] 2 All ER 1249.

7. When the hearing resumed, counsel indicated that the Plaintiffs would be content to leave the Letters of Administration standing as it is. I explained to the First Defendant who was present in person at the hearing that in Re Ward, Plowman J. held that, at pp. 1251-52:-

"the mere fact that the letters of administration state that these children of John are 'the only persons entitled to share in her estate' does not of itself preclude next-of-kin of an equal degree from participating and in my judgment it is unnecessary to have the letters of administration either revoked or amended in order to give the children of Michael the share to which they are clearly as a matter of law entitled."

8. Thus in my view the Letters of Administration granted to the First Defendant does not define the rights of succession. It does no more than authorize the administrator to administer the estate of the deceased in accordance with the law of succession, whatever the law may be. In any event, it may be necessary to rely on the Letters of Administration to deal with the remaining estate of the deceased. The application to revoke the Letters of Administration was misconceived and should be dismissed. In refusing to make the order prayed for in the originating summons and dismissing it, the court would not make any observation or ruling on the right of succession of any person or the validity or effect of the Approval Letter.

9. Since the First Defendant also accepted the court's view, I pronounced that there be no order on the application and the originating summons is dismissed with no order as to costs.