CHAN SIU MAN v. LAM JENNY AND ANOTHER

HCMP 1282/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1282 OF 2010

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REASONS FOR DECISION

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1.  At the end of the hearing, an order was made in terms of the defendants’ application for additional parties to be joined (and for related directions). A few words have to be spent on the background leading to the joinder application to enable an understanding of the issues which were in dispute.

2.  The deceased man, who passed away in September 2006, left behind 6 children.  4 of those children were born out of his former marriage (he was divorced in the early 1990’s). The other 2 children were born of the plaintiff (who was the deceased’s “common law” wife) (“the plaintiff’s 2 children”).

3.  There is no will and therefore the deceased’s estate is intestate.  Letters of administration were granted to the defendants in November 2009.

4.  Because of the plaintiff’s status, she does not fall within any of the classes of beneficiaries pursuant to the provisions of the Intestates’ Estates Ordinance (Cap 73).  But she commenced this action to claim against the estate, relying on the provisions of the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481).

5.  It can be inferred from the above background the deceased’s family consists of 2 camps: the 4 children from the former marriage being one camp and the plaintiff and the plaintiff’s 2 children being the other.  All 6 children have attained majority by the time of the hearing.

6.  The history of the proceeding (including the joinder application) confirms the existence of 2 camps.

7.  By an order dated 25 January 2011, (among other things) the defendants were:-

“ … directed to adopt a neutral stance [herein] … after making joint application to join [the 6 children] as Defendants … ”.

The joinder application was taken out as a result.

8.  The parties appearing in the joinder application were:-

(a) the plaintiff;

(b) the defendants;

(c) the 4 children; and

(d) the plaintiff’s 2 children.

The plaintiff was the only opposing party.

9.  The stance of the plaintiff’s 2 children was not entirely clear.  In the skeleton submission they expressly stated:-

“… they would not consent to be joined as the defendants to this action” (para 12 thereof) (see also para 15 thereof);

“All along [they] have been supportive of the claim of [the plaintiff] … ” (para 16 thereof).

10.  During the hearing, the plaintiff was apparently not entirely happy with such a stance.  After repeated prompting by the plaintiff, the legal representatives of the plaintiff’s 2 children changed the stance set out in the skeleton submission (see the quotes above).  Following quite some ambiguities as to their exact stance, the plaintiff’s 2 children ultimately indicated they would not give any instruction to the defendants as to whether to contest the plaintiff’s claim.

11.  Their stance set out in para 9 above would have put the defendants in difficulties because it was inconsistent with the stance of the 4 children.  The “new” stance of not giving instructions would not help the defendants either: they would not be able to know whether the plaintiff’s 2 children’s instruction would conflict with that of the 4 children.  The plaintiff’s 2 children may even be willing to be the plaintiff’s witnesses if there should be a trial of this action.

12.  The plaintiff, on the other hand, insisted that the 4 children should not be joined, and that the defendants should continue to conduct the proceedings in accordance with the 4 children’s instruction.

13.  In support of such objection, the plaintiff put forth the following:-

(1) the 4 children had no valid cause of defence, being only the beneficiaries of the deceased’s estate (having no legal title thereto); and

(2) the defendants should have no difficulty to defend this action on their own.

14.  Para 13(1) above is what can be called a pure technical objection.  There is no dispute that, practically, the defendants have no personal interest in any part of the estate whereas the 4 children’s shares in the estate can be adversely affected by the plaintiff’s claim.

15.  The practice relating to how applications pursuant to Cap 481 ought to be made has been narrated by the learned authors of Tristram & Coote’s Probate Practice (2006) 30^th Ed:-

“The personal representatives and all beneficiaries who may be affected by an order of the court are made defendants … ”;

“Where there is a joint application by two or more claimants whose interests conflict … they may, if they have conflicting interests, appear on any hearing of the claim by separate solicitors or counsel or in person … ”

(emphasis supplied) (para 41.04 thereof).

Thus, claimants whose interests conflict with each other should appear (and/or be represented) separately: Tristram & Coote, para 41.04, text to n 6.  There is no valid reason why the practice relating to beneficiaries having conflicting interests should differ.  The defendants’ joinder application is consistent with the said practice.

16.  By reason of the above matters, the point summarized in para 13(2) above is irrelevant, and in any event unmeritorious (see also paras 17 to 20 below).

17.  Further, the plaintiff cannot explain why it is undesirable (let alone prejudicial) for the 4 children to in effect take over the defence of this action from the defendants.

18.  The plaintiff also relied in this connection on the willingness of the plaintiff’s 2 children to accept a direction that they do abide by the determination of this action.  It was contended this showed that the defendants could disregard the plaintiff’s 2 children when deciding how to handle this action.

19.  This contention has no substance.  The direction was not proposed by the plaintiff’s 2 children; it was proposed by the defendants.  The purpose of the proposed direction is to help the defendants to decide how to deal with the shares of the estate beneficially owned by the deceased’s 6 children after this action has been resolved by the court.  The proposed direction was premised on a contentious proceeding regarding the plaintiff’s claim herein.

20.  Para 13(2) above also ignores the potential professional embarrassment of the defendants if they were to continue to conduct the defence of this action (see para 11 above).