RE POON LAI YING

HCAG 11487/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 11487 OF 2009

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REASONS FOR DECISION

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The Application

1.  The order of priority for grant where a deceased dies leaving a will should be determined in accordance with rule 19, Non-Contentious Probate Rules (Cap.10) (“NCPR”) as follows:

(i)  the executor;

(ii)  any residuary legatee or devisee holding in trust for any other person;

(iii)  any residuary legatee or devisee for life;

(iv)  the ultimate residuary legatee or devisee; or the personal representative of any person entitled to share in the residue not so disposed;

(v)  any specific legatee or devisee or any creditor;

(vi)  any legatee or devisee, whether  residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

2.  The Applicants in this case apply for letters of administration with the will annexed. In the Oath (Affirmation in support of the application) filed by the Applicants, the Applicants state in paragraph 1 that the Deceased died having made and executed her last Will.

3.  In paragraph 2, it is stated that the Deceased appointed Ho Shuk Yee the sole executrix in the Will.

4.  Paragraph 3 states that the Deceased did not name any residuary legatee or devisee holding in trust for any other person in Will.

5.  Paragraph 4 further states that the Deceased did not name any residuary legatee or devisee for life in the Will.

6.  Paragraph 5 states that the sole executrix named in the Will died testate after the Deceased without having proved the Will.

7.  After setting out the usual requirement confirming exhibit being the original last will, and that no minority or life interests arise, the Applicants depose in the concluding paragraph as follows:

“We are applying as the Joint Administrator (sic) for letters of administration (with the Will annexed) of the estate of the Deceased HO SHUK YEE the sole residuary legatees and devisees named in the Will.”

8.  R.19, NCPR, as set out above, does not provide for a capacity for grant in pursuance to a grant of probate of another deceased person. Should the Applicants apply as the legal representatives of the deceased executrix (and it appears to be the case), they would be required, in accordance with r. 25(3), to clear off all the surviving persons entitled under the Deceased’s estate. However, the Oath does not show such prior rights having been cleared off (particularly when the Deceased had directed in the Will that the residuary estate was to be dealt with in accordance with the Intestates’ Estate Ordinance, it may become necessary to identify whether there were any intestate beneficiaries for the purpose of clearing off prior rights).

9.  Hence, the paragraph in the Oath not only having failed to identify the Applicants’ entitlement in accordance with the order of priority listed in rule 19, NCPR, it is incomprehensible.

10.  Apart from the problem in the Oath, the application itself has also been badly prepared.

11.  In paragraph 1 of the Affirmation verifying the Schedule of assets and liabilities, it is deposed as follows:

“We have an application to the Official Administrator requesting him to get in and administer the estate of the Deceased in a summary manner.”

12.  The reference to an application to the Official Administrator for summary administration is an absolute non-sense. Given the fact that the Applicants are applying for a grant of letter of administration with the will annexed, such an assertion shows the case had not been given the due care as it should have been.

13.  It is a shoddy application.

14.  Hence, I directed the handling solicitor to appear before me to make submissions as to why the application should not be dismissed.

The Appointment Hearing

15.  Mr. Yuen attended the hearing, and conceded right away that the application had failed to disclose any proper capacity of the Applicants, and agreed to withdraw the application.

16.  I have no difficulty in granting leave to withdraw, and so granted.

17.  Given the appallingly bad application, I was also inclined to deprive the costs of the solicitor, and asked Mr. Yuen to show cause why I should not do so.

18.  Mr. Yuen explained that the application was prepared by a clerk of his firm, under the supervision of his partner. However, he has since personally handled the file, and promised to give more care in the future. He also confirmed that he would not charge his client any costs in respect of the work done in this application.

19.  The problem in the present case, I believe, stems largely from the solicitor having left a large chunk of the preparation work to an unsupervised clerk. Whilst I understand that a lot of experienced clerks could render invaluable assistance to solicitors, important documents such as an oath in a non-contentious application should not be prepared by a clerk. When a shoddy application such as the present one is lodged with the Probate Registry, the solicitors should bear the consequence of not only having the application dismissed but also their costs deprived of were good reasons not shown.

20.  While I accept that it may not be Mr. Yuen’s fault personally in allowing such a badly prepared application to be lodged, his clients should not be made to pay for the solicitors’ shoddy work. In light of Mr. Yuen’s undertaking in waiving the Applicants’ costs in the application, I made no order for costs.

21.  With the solicitor’s consent, I allow this Decision to be published, and hope that Probate Practitioners would take greater care in the future when preparing the non-contentious applications for grant.