YIP YUEN CHUN SHIREA v. CHICK TAK HIM in his capacity as executor of the estate of CHICK TAK HONG PETER

HCMP 1244/2023

[2026] HKCFI 1297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1244 OF 2023

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J U D G M E N T

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1.  The parties are the only beneficiaries of the estate of Chick Tak Hong Peter, the deceased (“the Deceased”), who died leaving a will. The plaintiff is the widow of the Deceased (“the Widow”) while the defendant is the surviving brother of the Deceased (“the Brother”). The Widow commenced the present proceedings for an account and to remove the Brother as the executor of the estate of the Deceased (“the Estate”). After the first appearance before this court, the proceedings were adjourned to enable the parties to resolve their differences as identified during the hearing. That eventually did not yield. Hence the restoration of the hearing.

BACKGROUND

2.  The Deceased made his last will on 21 December 1995 (“the Will”) providing for, amongst other things, the following:

(1)  The Deceased appointed his mother to be the sole executrix; but in case she was unable to act as such, the Brother would become the executor.

(2)  After paying the debts, funeral and testamentary expenses, the residue of the Estate would be divided into two equal parts, with one part to be transferred to the mother and the other part to be transferred to the Widow. If any of these 2 beneficiaries died before the Deceased, her share would be transferred to the Brother.

3.  The Deceased passed away on 14 August 2021. As the mother predeceased the Deceased, the Brother became the named sole executor of the Will. The Widow and the Brother were the only beneficiaries.

4.  On 22 April 2022, probate was granted to the Brother.

5.  On 24 May 2022, the Widow and the Brother entered into a written Deed of Family Arrangement arranged and witnessed by solicitor in Hong Kong (“the DFA”). The full text of the main terms of the DFA is set out below:

“WHEREAS:

(1) The late Mr. CHICK TAK HONG PETER, deceased (the “Deceased”) of Room C, 11/F, 5 Mount Sterling Mall, Mei Foo Sun Chuen, Kowloon, Hong Kong, died testate on 14 August 2021 at Ruttonjee & Tang Shiu Kin Hospitals, Hong Kong, having made and executed his last Will dated 21 December 1995 (“Will”).

(2) Pursuant to the Will, Chick Tak Him is the executor substituted and entitled to obtain a grant for the administration of the estate of the Deceased.

(3) Pursuant to the Will, the Parties are the only persons and shall be entitled to share equally in the Deceased’s estate.

(4) The Deceased died domiciled in Hong Kong.

(5) At the date of his death the Deceased left the assets more particularly described in the Schedule 1 hereto, which together forms part of the estate of the Deceased (the “Estate”).

(6) The Parties hereto are all sui juris and mutually agree to the family arrangement in the manner hereinafter provided.

NOW THIS DEED WITNESSETH AS FOLLOWS:

1. The Parties hereby agree that the statutory provisions or any other laws or customs applicable thereto shall not be observed but that the same shall be dealt with in the manner hereinafter appearing.

2. The Parties agree that Chick Tak Him shall not be liable for any act or omission of his or for any or omission of any agent of his employed in the administration of the estate of the Deceased save and except for any act or omission involving willful fraud or dishonesty committed by Chick Tak Him or his agent sought to be made liable.

3. Subject to the payment of the Deceased’s debts funeral and testamentary expenses payable from the Estate, the Parties hereto agree to the following in respect of distribution of the Estate:

(a) Chick Tak Him hereby renounces and relinquishes all his rights interest estate title of and in, and Shirea shall therefore be entitled solely to, the following assets of the Estate:

(i) The Car (as defined in the Schedule 1 hereto);

(ii) The Mei Foo Property (as defined in the Schedule 1 hereto); and

(iii) The Mandatory Provident Fund Account (Account no. 02592673-1) held in the name of the Deceased with Manulife (International) Limited.

(b) Shirea hereby renounces and relinquishes all her rights interest estate title of and in, and Chick Tak Him shall therefore be entitled solely to, the following assets of the Estate:

(i) the Car Park (as defined in the Schedule 1 hereto); and

(ii) The Mandatory Provident Fund Account (Plan no. BCM00014302748) held in the name of the Deceased with Bank Consortium Trust Company Limited; and

(c) In consideration of and upon Shirea paying Chick Tak Him the amount in Hong Kong dollars equivalent of Renminbi 1,315,715.00 within 3 working days of closing all bank accounts held in the name of the Deceased in Hong Kong as set out under paragraph 1 of Schedule 1 hereto, and upon receipt of such sum Chick Tak Him shall be considered as having renounced and relinquished all his rights interest estate title of and in, and Shirea shall therefore be entitled solely to, the PRC Property (as defined in the Schedule 1 hereto).

(i) For the avoidance of doubt, Chick Tak Him shall not unreasonably refuse to execute or do all such acts deeds and things as may be necessary or expedient for carrying out the transfer of the PRC Property to Shirea pursuant to this clause, except that he shall not be required by whether this clause or otherwise to physically travel to the People’s Republic of China where any period of quarantine is required for such travel.

(d) Shirea shall be entitled to keep all physical personal identification documents of the Deceased once it is no longer needed to process the transfer of assets under the Estate.

(e) The Parties shall be entitled in accordance to the Will to the balance of the Estate in equal shares after the above arrangements have been made, including but not limited to the cash in any bank accounts held in the name of the Deceased, the investments or sale proceeds of all investments in the name of the Deceased whether through securities, shares or otherwise, and any assets leftover after closing the Deceased’s business, as set out in the Schedule hereto.

4. All registration fees payable on and all taxes payable, whether stamp duties to be paid in accordance with Stamp Duty Ordinance (Cap. 117), or taxes in any other applicable jurisdiction, on this Deed and the Assent of any property distributed under this Deed including any future additional assessment thereof payable on the Deed of Assent shall be borne by the respective recipient of the property solely.

5. The Parties agree that they shall execute and do all such acts deeds and things as may be necessary or expedient for carrying out the objects of this Deed.

6. The Parties hereby agree and accept that all their rights and interests in the Estate shall be determined in accordance with this Deed only and no claim shall be made by any of them against each other in respect of or relating to the Estate or any part thereof otherwise than in accordance with the terms of this Deed.

7. If any Party wishes to change its address or mobile contact number, email address or other information about giving notices or communications to it, it shall give the notice of such changes to other Parties as required by this Clause. Any notice specifically required by this Deed and any other important communication required by or in connection with this Deed shall be issued in writing by a Party making the notice or communication, and may be delivered by email to the email address as listed herein or in such other manner as agreed by the recipient in writing.

(a) The email address of Shirea is […][1]

(b) The email address of Chick Tak Him is […][2]

8. Each party hereto hereby acknowledges that she has entered into this Deed of their own volition and prior to the execution of this Deed, has obtained the necessary advice, legal or otherwise, and fully understands the contents of this Deed and that each party believes this Deed to be reasonable and to her best interest under the circumstances.

9. This Deed may be executed in any number of counterparts ( and by the different Parties hereto on separate copies or counterparts), each of which when executed and delivered shall constitute an original of this Deed, but all the counterparts shall together constitute the same Deed. No counterpart shall be effective until each Party has executed at least one counterpart.

10. This Deed may be varied, amended or modified only by agreement under seal of all parties.

11. This Deed shall be governed by and construed in all respects in accordance with the laws of Hong Kong and the parties irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts in relation to any proceedings arising out of or in connection with this Deed.”

6.  The assets in the Estate set out in Schedule 1 of the DFA consisted of:

(1)  balances in bank accounts in the name of the Deceased and the business mentioned in (3) below (“the Bank Accounts”);

(2)  items of stocks, shares, warrants and unit trusts held under a securities account of the Deceased (“the Stocks”);

(3)  100% interest in SA Consultants & Associates (“the Business”);

(4)  a private motor vehicle (“the Car”);

(5)  2 life insurance policies with Fubon Life Insurance (Hong Kong) Limited and China Life Insurance (Overseas) Company Limited as well as 3 MPF account balances;

(6)  a residential property with car park at Mei Foo Sun Chuen, Kowloon (respectively “the Mei Foo Property” and “the Carpark”); and

(7)  a property in the Mainland (“the PRC Property”).

7.  On various dates between June and August 2022, there were distributions of the assets of the Estate. They included the credit balances of the Bank Accounts and proceeds of sale of the Stocks. The Business was a sole proprietorship of the Deceased which was de-registered on 12 October 2021, and the balance of the bank account in the name of the Business was distributed in August 2022. The Widow has possession of the Car. Assent was executed by the parties in respect of the Mei Foo Property in July 2022. The Brother also executed assignment of the Carpark in August 2022.

8.  The remaining assets in the Estate identified in Schedule 1 to the DFA became, amongst others, the centre of disagreement between the parties, which led to extensive correspondence between them through solicitors since mid-September 2022. KB Chau & Co (“KBCC”) act for the Widow while Michelle Ip & Co (“MIC”) act for the Brother.

9.  On 4 August 2023, the Widow commenced the present proceedings whereby she seeks the following relief:

(1)  The Brother do provide a full inventory and account of the assets of the Estate and his dealings of the assets upon the grant of the Letters of Administration with all supporting documents;

(2)  The Brother be removed as executor of the Estate and for the Widow or some other suitable persons to be appointed in his place to complete the administration of the Estate;

(3)  Upon the appointment of the suitable executor, the Brother do deliver up all the assets of the Estate to the substitute executor within 7 days;

(4)  Costs of the proceedings of the Widow be personally borne and paid by the Brother.

10.  Substantive argument was heard before this court on 15 October 2024 essentially surrounding the following issues:

(1)  the Brother’s purported deduction of a sum of HK$3,000,000 from the pay-outs on the Deceased’s life insurance policies in the total sum of HK$6,372,912.26;

(2)  liability for the management fee of the Mei Foo Property;

(3)  the handling of the PRC Property;

(4)  the alleged concealment of assets of the Estate; and

(5)  various other alleged conduct of the Brother.

11.  Insofar as (1) above is concerned, it was, as discussed below, a misconception on the part of the Brother that a sum of HK$3,000,000 was liable to be deducted in his favour before distribution. This court pointed that out during the hearing. By letter dated 27 September 2024 from MIC, ie prior to the hearing, the Brother also acknowledged that flaw.

12.  Insofar as the limited scope of what remain in administration, this court saw room for the parties to resolve their differences, and the parties were not opposed to attempt towards that. Hence the adjournment of the proceedings with liberty to restore. A time frame of 60 days was given. As seen below, the parties took some time afterwards, but unfortunately persisted in argument by way of correspondence through their solicitors.

13.  After the first hearing, in late October 2024, the Brother made distribution of the insurance pay-outs. Whilst the deduction previously insisted upon was dropped and the calculation rectified, argument arose in respect of entitlement of the Widow to interest for the overdue distribution. This was complicated by the Brother’s deduction of an amount equivalent to the agreed consideration for his renunciation and relinquishment of his entitlement to the PRC Property provided in §3(c) of the DFA, also with interest for alleged overdue payment of the same by the Widow. That led to, according to the Brother, a balance after set-off HK$1,907,070. The sum of HK$1,907,070 was paid to and received by the Widow through KBCC, though not without qualification and reservation of rights. Statements of account evidencing such movement of money were disclosed.

14.  Argument between the parties ensued, and was subsequently brought to the notice of this court. Hence the written direction of this court dated 15 May 2025 for the restoration of the hearing with incidental directions for the filing of up to date evidence.

15.  The dispute mainly surrounds the account and alleged concealment of assets belonging to the Estate, the handling of the PRC Property and the Mei Foo Property as well as their incidental interim costs and expenses of preservation. Relatively minor dispute surrounds the Brother’s refusal to provide his new correspondence address except for that of those acting for him.

16.  Needless to say, the extent to which any finding by this court in respect of the above dispute serves only the purpose of the application, which remains one taken out by the Widow pursuant to Section 33(3) of the Probate and Administration Ordinance, Cap 10 (“PAO”), and for the relief sought in the application. This court is not here to adjudicate, let alone to grant relief, concerning the rights and interests of the parties as mere beneficiaries of the Estate and under the DFA.

SECTION 33(3) OF THE PAO

17.  Section 33(3) of the PAO provides:

“The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (…) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”

18.  The court in Chu Wing Chuen Paul & Ors v Chu Oi Yan Irene [2022] HKCFI 804 explained the following principles:

(1)  The discretion to remove an executor or an administrator under section 33 of the PAO involves an assessment and a value judgment in all the relevant circumstances of whether removal is required for the due and proper administration of the Estate and the interests of the beneficiaries.

(2)  Not every mistake or neglect of duty, or inaccuracy of conduct of trustees would induce the court to remove the executor or the administrator.

(3)  The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or want of proper capacity to execute the duties, or a want of reasonable fidelity.

(4)  Hostility between the executor/administrator and the beneficiary is not a ground for removal, unless the breakdown of the relations between them is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative.

(5)  In exercising its discretion, the court should have regard to the size of the estate, the nature of the assets that need to be administered, the background and education, training and experience of the remaining and substituted personal representatives and the interests of the beneficiaries. The view of the majority beneficiaries is a relevant factor.

(6)  The discretion to remove an executor or an administrator is to be exercised with great caution and sparingly. In general, removal is not to be preferred unless the administration is still far from completion.

(7)  The courts are reluctant to exercise the discretion where the incumbent executor or administrator wishes to carry on, without allowing that incumbent an opportunity to repair or remedy any defects and progress promptly with due administration. The fact that administration of the estate could have been done better is not of itself sufficient ground.

19.  The court has to assess with regard to all the circumstances of the case to decide whether discretion should be exercised under section 33(3) for the due and proper administration of the estate and the interests of the beneficiaries: see Tsang Wing Kwai v Tsang Wing Fai (No 2) CACV 239/2018 (13 February 2019) at §§26-28.

THE DFA

20.  In entering into the DFA, the Brother did so, firstly as the executor and secondly as a beneficiary of the Estate. The focus for the purpose of these proceedings should be the dispute in the context of the former instead of the latter of the Brother’s dual capacity. As mentioned, this is not the venue for adjudicating the dispute in respect of the rights and interests of the parties as mere beneficiaries of the Estate under the Will and governed by the DFA.

21.  By §1 of the DFA, the parties agreed that the statutory provisions or any other laws or customs applicable shall not be observed, but the Estate or the DFA shall be dealt with in the manner as provided in the deed. By §6, the parties agreed that all their rights and interests in the Estate shall be determined in accordance with the DFA only, and no claim shall be made by any of them against each other in respect of or relating to the Estate or any part thereof otherwise than in accordance with the terms of the deed. Read together, these provisions regulate the parties’ entitlements to the Estate as beneficiaries.

22.  By §2 of the DFA, the parties agreed that the Brother shall not be liable for any act or omission in the administration of the Estate save and except for any act or omission involving wilful fraud or dishonesty. This regulates the Brother’s discharge of his duty as the executor. Whilst the clause does not absolve him from performing what the duty of the executor entails in accordance with the principles discussed above, it does limit his liability as such for any breach to instances of fraud and dishonesty. The qualification by reference to the element of wilfulness adds nothing material as fraud and dishonesty by nature connotes wilfulness.

ACCOUNT AND ALLEGED CONCEALMENT OF THE ASSETS OF THE ESTATE

23.  Section 56 of the PAO provides:

“The personal representative of a deceased person shall, when lawfully required so to do, exhibit, by affidavit filed in the court, a true and perfect inventory and account of the movable and immovable property of the deceased, and the court shall have power as heretofore to require personal representatives to bring in inventories.”

24.  Generally speaking, to render a proper account of the estate of a deceased person, the personal representative is required to:

(1)  show the opening balance (including capital assets) and closing balance;

(2)  give details of movement of assets, incomes and expenditure of the estate;

(3)  give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and

(4)  support the account with documentary evidence.

See Chow Chak Kiu v Chow Man Chit & Ors HCMP 797/2016 (17 January 2017).

25.  The account kept must be clear and accurate, and the executor or administrator must be ready to render such account when called upon to do so: see In Re Estate of Lee Da Kor [2010] 1 HKLRD 415 at §17 (applied by this court in Cheng Tang Kam Yung v Tang Kam Cheung & Anor, HCMP 147/2008 (26 August 2013)).

26.  The question of whether the Brother has discharged his duty of rendering proper account may be answered as at the time when and after these proceedings were commenced.

WHEN THESE PROCEEDINGS WERE COMMENCED

27.  The correspondence shows that the Widow first complained through KBCC in October 2022 about the Brother’s failure to account for all the assets of the Estate with specific reference to the insurance pay-outs. The Brother forthwith instructed MIC to respond.

28.  The Brother’s then stance of deducting HK$3,000,000 from the insurance pay-outs in his favour mentioned above refers. The Widow objected to that, and demanded distribution of the insurance payments with overdue interest of approximately 5%. She also demanded confirmation if the Brother held any other assets on behalf of the Deceased which should belong to the Estate. She demanded disclosure of complete notes and supporting documents to show the composition of the Estate.

29.  The reply from MIC in December 2022 reiterated the Brother’s above stance and the proposed payment of the Widow’s share on such basis, ie a sum of HK$1,686,456.13, but only if this was accepted as the final net remaining distribution to extinguish her claim. MIC demanded the Widow to produce supporting documents in respect of any other claims she had to the Estate. MIC also demanded the Widow to settle HK$31,140 being the testamentary expenses or else the Brother would set off the amount before distribution.

30.  The argument ensued in relation to the distribution of the insurance pay-outs. In their response, KBCC also referred to the agreement between the parties back in August 2022 that payment of the testamentary expenses should be handled subsequent to the final distribution of the Estate.

31.  In their further reply, MIC claimed the Brother had an absolute power of disposition over the Estate, and that he had diligently and properly administer the Estate and to distribute the Widow’s share of it. Each realisation of the cash at bank, stock, insurance policies and other assets in the Estate was carefully handled by him at the various banks and accompanied by the Widow. As he had already disclosed all relevant information and documents of the Estate, which the Widow knew, it would be for the Widow to produce any document in support of her further claim.

32.  That brought us to January 2023. KBCC referred to the MIC’s earlier indication of mistake in the schedule to the grant, and requested for an updated full inventory and account of the assets of the Estate, in particular whether the Schedule had included all the assets including those allegedly held by the Brother on trust for the Estate. In reply, MIC indicated that application to amend the schedule would be made. However, the Brother did not have updated full inventory and account of the assets of the Estate except that the residuary estate had a residential property in Guangdong, but the Widow was in possession of the land certificate or document in respect of that property. MIC suggested the Widow, if she had, to provide the updated full inventory and account of the assets of the Estate to him instead.

33.  The Widow commenced these proceedings on 4 August 2023. By letter dated 14 August 2023, KBCC requested MIC for confirmation of instruction to accept service of proceedings.

34.  By letter to KBCC dated 14 August 2023, MIC set out the following breakdown of further administration of the Estate (“the Breakdown”):

For distribution:
	Insurance payouts by Fubon	HK$6,372,912.26
For deductions:
	Term loan paid to Fubon by the Estate	HK$3,000,000.00
	Legal costs (1/9/2022 to final distribution)	HK$ 75,000.00         ========
Net amount for distribution		HK$3,297,912.26
The Widow’s half share		HK$1,648,956.13
Deduction of half share of further administration charges for the Estate of the Widow as agreed by the parties on 3 August 2022		HK$ 15,570.00         ========
Deduction of consideration for the PRC Property		HK$1,578,858.00
Net distribution to the Widow		HK$ 54,528.13         ========

35.  On the following day, MIC wrote to KBCC reiterating that the Brother had performed and discharged his duty in accordance with the grant and the DFA. Meanwhile, they requested for identification by the Widow of the alleged missing assets of the Estate and the alleged mistake in his distribution of the Estate to her. Correction and further distribution would then be made. Pending that, MIC pleaded for the withholding of legal proceedings.

36.  On 16 August 2023, KBCC repeated their request for confirmation of MIC’s authority to accept service of proceedings while MIC complained about the lack of letter before action. The proceedings were served on the following day.

37.  By letter dated 24 August 2023, KBCC put on record her disagreement with the Breakdown.

38.  The Brother is under the duty not only to properly administer and distribute the Estate but also to render full inventory and account of the Estate when requested by the beneficiary, ie the Widow. Such inventory and account would be expected to set out the details as explained in Chow Chak Kiu (above).

39.  That the Widow might have been present when the Brother attended the banks for the withdrawals and closure of the accounts of the Deceased, and has received distributions, on divers dates is no answer to her request for such inventory and account. If the movement of any assets of the Estate involved the Brother’s personal bank account, disclosure of such entries in the account could not be legitimately withheld.

40.  In my judgment, the Brother has fallen short of properly answering such request by the Widow for full inventory and account of the Estate with supporting documents prior to the commencement of these proceedings. He came to do so only by way of affirmation filed in opposition of these proceedings.

41.  §(5) of the recital of the DFA provides that the assets as at the date of the Deceased’s death as set out in Schedule 1 to the DFA formed part of the Estate. Further, §3(e) provides that the parties shall be entitled in accordance with the Will to the balance of the Estate in equal shares after the arrangement set out in §3(a) to (d). The reference to the balance of the Estate was expressly inclusive of but not limited to those set out in Schedule 1 to the DFA. Literally construed, the list of assets in the schedule might not necessarily be exhaustive.

42.  Discharge of the duty of the Brother presumes the revelation of all the assets belonging to the Estate actually located and collected by the Brother in the course of administration. Where the Brother’s confirmation of the same becomes contentious due to challenge by the Widow, the dispute will have to be resolved in accordance with the normal civil burden of proof. The Widow is legitimately expected to substantiate her contention for the purpose of her application pursuant to section 33(3) of the PAO, namely the existence of a prima facie case warranting the conclusion that it is necessary and expedient for the purpose of due administration to remove the Brother from his seat.

43.  According to the Brother, it was the Widow who discovered the Will and gathered information regarding the Deceased’s finances and bank accounts. He did not conceal any assets from her. The Widow refers to the history of investments in stocks and fixed deposits made by the Brother on behalf of the Deceased during the latter’s lifetime. The Brother admitted that. However, he deposed that that ceased after the Deceased had his own securities account.

44.  The contemporaneous documentary evidence which the Widow relies on to contradict the Brother’s explanation is the WeChat records suggesting such handling by the Brother on behalf of the Deceased once in January 2018 and once in October 2020. They were isolated instead of evidence of a pattern, let alone a continuing one. Significantly, they predated the change mentioned above as explained by the Brother.

45.  In my judgment, the Widow falls short of elevating obvious distrust to evident concealment of assets belonging to the Estate by the Brother for the purpose of her application.

46.  Insofar as the deduction of HK$3,000,000 on account of the term loan secured by the Deceased’s insurance policies is concerned, the misconception of the Brother arose out of his failure to appreciate that that was the pre-existing liability of the Deceased to be discharged by the insurance payouts over which the Brother might only claim a contingent interest as beneficiary. His beneficial interest accrued upon the passing of the Deceased in respect of the remainder of the insurance pay-outs, if any, after discharge of such prior secured liability of the Deceased. The purported deduction from distribution to the Widow as compensation to him was flawed. As mentioned, the Brother acknowledged that but only shortly before the hearing on 15 October 2024.

47.  There is dispute as to the Brother’s deduction of the amount representing the consideration for his relinquishing and renouncing of beneficial right to the PRC Property. §3(c) of the DFA above refers. This, the Widow argues, conferred on her merely an option to purchase the PRC Property, and she disagrees with the contractual consideration for the lack of valuation.

48.  §3(c) of the DFA unequivocally sets out the agreed consideration for the purpose of that clause, which binds the parties. By §8, the Widow acknowledged that she entered into the DFA of her own volition and has obtained the necessary advice, legal or otherwise, and fully understood the contents, and that she believed the deed to be reasonable and to her best interest in the circumstances. This court notes from the attestation section of the DFA that unlike the Brother who required interpretation of its content, the Widow signed the document without the need of interpretation. The Widow’s attempt, if indeed intended, to dispute or to re-open the agreed consideration for reason such as the alleged lack of valuation, would be battling uphill, if not doomed.

49.  Different from the agreed relinquishment and renunciation of rights and interests under §3(a) and 3(b), the consideration agreed for the purpose of §3(c) is executory. It was agreed that the Widow would pay the agreed consideration within 3 working days of the closing of all the bank accounts listed in §1 of Schedule 1 and “upon receipt of that” the Brother would be considered as having renounced and relinquished his rights interest estate title of and to the PRC Property. Putting aside whether or not this amounts to an option to the Widow, as she argues, the Brother was contractually not considered as having relinquished or renounced his rights and interest in the PRC Property unless and until the Widow performs her part of the agreement. Before that, the parties remained entitled to the property as beneficiaries of the Estate.

50.  Here the Brother was supposed to straddle with care when he came to deal with the assets of the Estate when wearing both hats of the executor and the beneficiary. This is the case regarding his purport to apply the HK$3,000,000 deduction from distribution to the Widow on the basis of his entitlement as the beneficiary of the insurance policies to be compensated. This is also the case regarding his approach to withhold from distribution to the Widow the sum representing the agreed consideration pursuant to §3(c) of the DFA in his favour. The former was admittedly flawed. The latter, if disputed, might afford the Brother a right of action against the Widow for specific performance of the DFA in his capacity as the contracting beneficiary.

51.  Bluntly put, whilst not all of the contentions raised by the Widow are substantiated, the stance and course consciously taken by the Brother, insofar as discharge of his duty as the executor is concerned, did afford the Widow with a prima facie basis for initiating these proceedings.

AFTER THE 15 OCTOBER 2024 HEARING

52.  As mentioned, the Brother set out his account in his affirmation in opposition explaining the respective balances of the bank and securities accounts of the Deceased as of the date of death, the transfer of such assets to him as well as their distributions between the parties. Before the 15 October 2024 hearing, the Brother also acknowledged the flaw of the purported deduction of the sum of HK$3,000,000 from the insurance payouts before distribution to the Widow. Following that, the Brother also offered to pay 5% annual interest for the overdue distribution of the Widow’s entitlement to the insurance payouts.

53.  Meanwhile the Brother persisted on his stance in respect of the handling of the PRC Property, namely by deducting the agreed consideration from the amount distributable to the Widow, on the basis that the Widow has already kept the title documents to the PRC Property. In addition, he charged 5% annual interest on that amount which he considers as overdue. He sought to have the same set off against the amount distributable to the Widow.

54.  In November 2024, KBCC demanded documents such as account statements in support of the Brother’s account mentioned above. MIC responded that all bank statements for administration purpose have been disclosed by the Brother’s affirmation. That said, they indicated by letter in the following month that they would take instruction regarding the request and revert by 18 December 2024.

55.  By letter dated 13 December 2024, MIC enclosed the Brother’s updated inventory and account of the Estate. As to the PRC Property, payment by the Widow pursuant to the DFA was said to be deemed by way of the set-off applied by the Brother to the amount distributable to her as mentioned above. The Brother offered to sign the declaration of renunciation of the PRC Property inheritance (“the Declaration”) at the time and venue to be proposed by the Widow. Deadline for that was set at 20 December 2024 after which request by the Widow to do so would not be entertained.

56.  Subsequently when the above deadline came, KBCC informed MIC that a China-appointed Attesting Officer was then in the course of preparing the Declaration. Then came the letter dated 6 February 2025 from MIC whereby they complained about direct approach by the secretary at KBCC to the Brother, including that for the signing of the Declaration. This caused the China-appointed Attesting Officer from KBCC, who was responsible for preparing the Declaration, to write to MIC by email on the following day, hoping to resolve the misunderstanding. He clarified that it was the understanding given to him and his secretary that the matter between the parties had been settled. Upon that, he became involved in drafting the Declaration in accordance with the DFA, which his secretary then sent to the Brother earlier.

57.  By their letter also dated 7 February 2025, MIC set out their disagreement with the terms of the Declaration. MIC further put on record on the day after that the Brother’s disagreement to execute the Declaration in those terms.

58.  KBCC replied by letter dated 13 February 2025. By that, they recited that the parties have largely confirmed that the Brother would be considered as having renounced and relinquished his interest in the PRC Property and the Widow would be entitled to it. That, they described, was the consensus and not controversial. The Declaration was prepared on such basis to answer the Brother’s request in December 2024 mentioned above. KBCC disagreed with MIC’s objection to the terms of the Declaration. They contended that the Declaration adopted the standard wordings typically used for such document, and appropriate when the Brother was giving up his inheritance right in the PRC Property subject to payment by the Widow pursuant to the DFA. They argued that the Brother does not have any right and interest in the PRC Property yet, and therefore it would be more appropriate for him to renounce than to transfer such right and interest.

59.  By letter dated 14 February 2025, MIC argued that execution of the Declaration in the proposed terms would prejudice the Brother’s interest in these proceedings which had only been adjourned. They therefore requested for a draft consent summons for the settlement of these proceedings before the Brother would consider executing the Declaration.

60.  By letter dated 20 February 2025, KBCC complained about MIC’s attempt to hold the execution of the Declaration conditional upon settlement by the Widow’s consent to the dismissal of these proceedings against the Brother. They demanded constructive comment on the Declaration or else the Brother would be considered as simply refusing to proceed. They requested MIC to state whether the Brother intends to reserve any right in the PRC Property notwithstanding the DFA. For the sole purpose of amicable resolution of the matter, they also invited MIC to propose a price for the Brother to effectively buy out the Widow’s interest in the PRC Property instead. Lastly, KBCC reiterated the previous complaints about the failure to provide full account of the Estate with supporting documents and the unreasonable demand for interest on the agreed consideration for his interest in the PRC Property.

61.  By letter dated 21 February 2025, MIC elaborated their stance that the Brother agreed to renounce his rights and interest in the PRC Property but not the Estate as the Declaration seemed to suggest. They also explained that their proposal for a consent summons for settlement of these proceedings was made only upon considering KBCC’s representation in their earlier letter about settlement between the parties. They also put on record that the updated inventory and account of the Estate was last rendered on 13 December 2024 as mentioned above but had so far been ignored by KBCC.

62.  Argument by way of correspondence ensued with essentially repetition by the parties of their respective stances. However, by letter 15 April 2025[3], KBCC brought up various other issues:

(1)  Due to the alleged delay by the Brother in signing the requisite statutory declaration for the transfer of title in the Mei Foo Property to the Widow, the transfer was not completed until August 2023 and was registered in January 2024. This resulted in extra legal expenses charged by the solicitors responsible for the probate in the sum of HK$39,885. The Widow has also settled the management fees for the Mei Foo Property up to the completion of the transfer on behalf of the Estate. Her request for reimbursement by the Estate was refused by the Brother on the ground that she had been occupying the property.

(2)  The Brother has allegedly filed false affirmation in relation to the status of the insurance policies mentioned above in obtaining the probate, and the Widow demanded remedial action to explain and to rectify the same.

(3)  Whilst the Widow has kept certificate of property ownership for the PRC Property since the death of the Deceased, the transfer of title was held up due to the Brother’s refusal to co-operate in signing the Declaration. The Widow has thus paid management fees in the sum of RMB40,864.56 on behalf of the Estate by then, and demanded reimbursement by the Estate.

(4)  As the Brother no longer resided at the address given in the DFA, and was obliged by §7 thereof to provide his current address, which would be necessary for the purpose of the preparing the Declaration.

63.  Except for the amendment of the schedule to the grant concerning the insurance policies, which was granted by the court in March 2023, the above demands were essentially rejected by the Brother through MIC by letter dated 22 April 2025.

64.  By letter to the court dated 29 April 2025, KBCC sought to restore these proceedings. That was met by MIC’s opposition by letter dated 2 May 2025.

65.  On 15 May 2025, this court directed the restoration of these proceedings for argument with incidental directions for the filing of up to date evidence. Another dozen of letters between the parties’ solicitors and their consent summons followed for extension of time and adjournment.

THE PRESENT HEARING

66.  On 15 August 2025, argument was heard which mainly concerned:

(1)  the Brother’s account of the Estate;

(2)  the handling of the PRC Property and the incidental issues of interest, management fees and legal costs;

(3)  the handling of the Mei Foo Property and the incidental issue of management fees; and

(4)  the Brother’s change of address.

Account of the Estate

67.  Since the account given by way of his affirmation in opposition, the Brother provided his updated account of the Estate by way of enclosure to MIC’s letter dated 13 December 2024. Majority of its contents did not materially differ from the account previously provided. The account was given with documents.

68.  Insofar as the monetary assets are concerned, the Brother has disclosed bank statements showing the balances of the Deceased’s accounts after his death and the Brother’s bank statements showing the movement of the cash proceeds received. The timespans before their withdrawals and distributions to the Widow were notably short. This applies to the balances in the Bank Accounts and that of the Business and the proceeds of disposal of the Stocks. However, the same may not be said about the timespan since the receipt of the insurance pay-outs in August 2022.

69.  The total amount of about HK$6.37 million received have always been kept by the Brother presumably in his own bank account or accounts. The Widow is entitled to know their movement as well as any utilisation of such sums to generate income, including interest, since their receipt by the Brother, together with the relevant documents. The Brother’s proposed manner of distributing the Widow’s share of such sums (after set-off against what she should allegedly be responsible under the DFA) and his offer to pay annual interest at 5% for the overdue distribution do not constitute answer to such call of duty by the beneficiary to provide the account. Indeed, the scope of the account, according to counsel for the Widow in her written submission at the present hearing, focuses on the “death benefits payout”.

70.  As far as the alleged concealed assets which the Brother is said to hold on trust for the Deceased and thus the Estate are concerned, the above discussion in respect of the burden of substantiating the basis refers. No improvement in terms of evidence towards that end from the Widow has since been adduced in rebuttal of the Brother’s denial on oath. Nor does counsel’s submission serve to change that.

Handling of the PRC Property

71.  At one point, the Widow contended that she was less than willing to enter into the DFA in respect of the PRC Property, and questioned the binding effect of the agreed consideration on the ground of lack of valuation. As discussed, such contentions, had they been insisted upon, would have been unattractive, if not doomed, in the circumstances of this case.

72.  The Brother contends that the set-off of the agreed consideration for his interest in the PRC Property against the amount distributable to the Widow would be fair and practical. This is where he was supposed to straddle carefully, as he would be exercising his control as the executor for his benefit as a beneficiary pursuant to the DFA. The assertion of absolute power as the executor made by MIC on his behalf at one point was an overstatement, and not helpful at the time for resolving the parties’ difference.

73.  All those said, the parties appeared to have proceeded on the basis that the agreed consideration for the Brother’s interest in the PRC Property has been paid in the manner proposed by him. Otherwise the Widow would not have instructed KBCC to prepare the Declaration, which the Brother would not have been obliged to consider signing, had he not already been paid by the Widow and thus considered as having relinquished and renounced his interest and rights in the PRC Property. Likewise, by withholding the amount of the agreed consideration out of the distribution to the Widow as her payment, the Brother would have to honour §3(c)(i) whereby he agrees not to unreasonably refuse to execute or do all such acts deeds and things as may be necessary or expedient for carrying out the transfer of the PRC Property to the Widow.

74.  Hence the focus, as it remains, would be the Brother’s compliance with the above. First and foremost, there is the Declaration, in respect of which the parties differ in how it should be worded. That would have been logistics to be worked out between the parties. The Brother, by the submission of his counsel, indicates his readiness to do so.

75.  Whilst the agreed consideration for the Brother’s interest in the PRC Property was paid in the manner as administered by him, there came about the incidental issue of interest for alleged overdue payment. The set-off applied by the Brother to the distribution to the Widow consisted of 5% annual interest on the agreed consideration. Again, he was exercising his control and power as the executor in this manner for his interest as the beneficiary. That aside, whether this was rightly done is questionable.

76.  As counsel for the Widow points out, the fact was the amount, which would have been payable by her to the Brother, was retained by the Brother all along. If presumably in his bank account or accounts, such amount would have been interest bearing. The assertion of 5% annual interest, apparently to echo his offer to pay the same to the Widow for the overdue distribution of her share of the insurance payouts mentioned above, must be justified.

77.  Counsel for the Brother refers to Man Ping Nam & Anor v Man Fong Hang (2007) 10 HKCFAR 140 at §14 regarding the jurisdiction of the court to order interest on money improperly withheld. However, the money which was payable and eventually paid by the Widow by way of the set-off applied by the Brother was at all times with him, and part of the reason for the delayed distribution was his admitted flaw in the original deduction from the insurance payouts.

78.  The other incidental issue is the management fees in respect of the PRC Property since the death of the Deceased. The Widow’s stance is that the Estate should be responsible whereas the Brother contends that this should be the responsibility of the Widow. In his submission, counsel for the Brother refers to In Re Rooke [1933] Ch 970 at 974, saying that the cost of the preservation and upkeep of property specifically devised and bequeathed between the date of the testator's death and the date of the executors' assent are payable by the specific devisees and legatees.

79.  The present case involved a property in the Mainland which is not expected to become vested in a specific devisee by the executor’s assent as such. Pending the Brother’s relinquishment and renunciation of his interest, which did not happen until his receipt of the agreed consideration, and the parties’ compliance with the relevant Mainland procedure, the Widow and the Brother remain entitled to the property as beneficiaries of the Estate under the Will and the DFA. It would effectively be the same whether it was the Estate or both of them as beneficiaries being responsible for the cost of preserving the PRC Property such as the management fees. The Brother’s contention that the Widow should be solely responsible in the interim is questionable.

80.  Insofar as the legal costs for the transfer are concerned, counsel for the Brother relies on Grosvenor v Grosvenor [1916] 2 Ch 375 at 378, and argues that when executors assent to specific legacies, the costs of transferring those legacies, including the executors' own costs, must be borne by the specific legatees. The discussion in the preceding paragraph refers. Counsel for the Brother also relies on §3(c) of the DFA and argues that the Widow’s payment of the agreed consideration did not happen until his set-off applied to the insurance pay-outs before distribution in late October 2024. The discussion above in respect of the circumstances surrounding that and the respective responsibilities of the parties refers. Prior to the actual vesting of the PRC Property in the Widow pursuant to the Will as varied by the DFA, preservation of the property for the benefit of the beneficiaries was the prima facie liability of the Estate.

The Mei Foo Property

81.  The Widow contends that the Brother should be responsible for the management fees and legal costs in respect of the Mei Foo Property prior to the completion of the transfer of the interest in the property delayed for the Brother’s fault.

82.  On 5 July 2022, the Brother signed the Assent for transferring the Mei Foo Property to the Widow. On 8 June 2023, the Widow’s former solicitors notified the Brother of the requested by the Inland Revenue Department for a statutory declaration for stamp duty purpose. On 11 August 2023, the statutory declaration was executed. The Mei Foo Property was registered on the Land Registry on 11 January 2024.

83.  The parties were beneficiaries of the interest in the Mei Foo Property under the Will, which was varied by the DFA. As discussed, preservation of the property as part of the Estate pending distribution was the liability of the Estate. By the Assent executed in early July 2022, the Brother as the executor effected the transfer of his interest in the property pursuant to the DFA and vested the entire interest in the property in the Widow. §4 of the DFA provides that all registration fees and taxes payable, including stamp duty, would be the responsibility of the recipient of the interest in the property vested by Assent.

84.  It cannot be said that the Brother was guilty of delay in executing the deed of assent or responding to the request from the Widow through her former solicitors for the statutory declaration. The basis for casting the burden of such expenses on the Brother is doubtful.

The Brother’s address

85.  The Widow complains about the Brother’s refusal to provide his updated address. §7 of the DFA only requires the parties to notify each other of such change of address for the purpose of giving notice or communication. The request by the Widow for the updated address of the Brother serves another purpose, namely for the purpose of the Declaration. This is incidental to the performance of §3(c) including (c)(i), which is a matter between them as beneficiaries.

EXERCISE OF THE DISCRETION

86.  The distrust between the parties is obvious, but that is not determinative. There have been wrongs on the part of the Brother in his capacity as the executor, some of which have been acknowledged and rectified. The limitation of liability on his part in such capacity pursuant to the DFA aside, what remains in the Estate which requires administration by the Brother are minimal. Counsel for the Widow accepts that the size of the Estate is humble. Majority part of the remaining dispute concerns the rights of the parties as beneficiaries and their performance as such pursuant to the DFA. There is no other beneficiary’s interest. The court’s observations made above would hopefully guide the parties to iron out and eventually resolve the remaining dispute. However, change of the executor in these circumstances and at this stage, in my judgment, would not be instrumental to achieving such resolution. In other words, this court sees no necessity in terms of the due and proper administration of the Estate to remove the Brother as the executor as of now.

RELIEF THE BROTHER SEEKS

87.  Apart from opposing the application, the Brother through counsel by way of submission seeks the following orders:

(1)  That he be permitted to retain 5% annual interest on the agreed consideration for his interest in the PRC Property; 

(2)  That the parties shall jointly appoint an independent China-Appointed Attesting Officers for the purpose of the Declaration, and that he would sign the same within 14 days after the draft has been made available to him;

(3)  That the Widow should pay the management fees of PRC Property and the legal costs of transferring that property; and

(4)  That the Widow should pay the management fees of the Mei Foo Property (HK$94,981) and the legal costs of transferring that property;

88.  As discussed, (1) and (2) above concern the dispute between the parties in their capacities as the beneficiaries of the Estate as governed by the DFA. It is inappropriate for the Brother to ride on these proceedings targeting him as the executor to seek such relief.

89.  (3) and (4) above involves dispute as to whether the liability for any of those expenses should be that of the Estate, which the Brother would have to administer. Whilst he has made his stance in such dispute known, it would be his concern as the executor to ensure that he is right, in view of the strong contest by the Widow. To do so, the Brother in his capacity as the executor could have considered seeking directions from the court. Instead, the Brother chose to indulge in argument by way of correspondence through solicitors with the Widow. When these proceedings were commenced, the Brother has not lodged cross application for the relief now sought until, as mentioned, by way of counsel’s submission at this hearing.

90.  This court is not minded to grant the relief sought by the Brother in the circumstances, but the observations made by this court above regarding those disputed issues hopefully serve to guide the parties in resolving such dispute.

DISPOSITION

91.  In the circumstances, this court orders that the Brother do provide within 21 days full inventory and account of the assets of the Estate, particularly the insurance payouts to which the parties are entitled to as beneficiaries, including their movement and his dealings with them since the grant of the Letters of Administration up to the date hereof, together with all supporting documents (those previously provided excepted).

92.  Rest of the originating summons herein is dismissed.

COSTS

93.  In Kan Yuk Sum v Kan Yuk Shing (in his personal capacity and as the executor of the estate of Tam Lee Yau) CAMP 127/2025 ([2026] HKCA 363) handed down 2 days ago, the appellate court recited (at §8) the principles governing costs of proceedings like the present one:

“The principle is that where proceedings have been properly instituted for the benefit of a trust fund, or a deceased’s estate, the Court may, in an appropriate case, make an order for the costs of the proceedings to be borne by the fund or estate, as the case may be. The principle was explained by Kekewich J in Re Buckton at pages 414 and 415. He referred to three classes of cases relevant to the issue of costs. The first class are those that the trustee of the estate asks the Court to determine questions in the administration. The general rule is that the costs of all the necessary parties would be taxed as between solicitor and client and paid out of the estate. The second class are those that the beneficiary asks the Court to determine questions in the administration of the estate. The same consequence will apply if such question to be determined was necessary and the costs of all parties are necessarily incurred for the benefit of the estate as a whole. The third class of case are those that the beneficiary asks the Court to determine questions, but in substance although not in form, an adverse claim made in hostile litigation. Costs in such cases are borne by the losing party. These principles, however, do not constitute absolute rules. They are merely guidance as to how judicial discretion regarding costs in probate or administration proceedings should be exercised. The answer would depend upon particular circumstances in which the litigation has been commenced and prosecuted. Overall, it is a matter of judicial discretion, and each case would depend on its own facts.”

94.  Whilst the Widow may have prima facie basis for initiating these proceedings, she succeeded only partially and fails in obtaining the major relief of removal of the Brother as the executor. She also fails to substantiate some of her contentions. The Brother succeeds in resisting his removal but admittedly had his wrongs in the administration, and remains blurred in his demarcation between his duty as such and his interest as a beneficiary of the Estate in his approach. As found, he fell short of answering the request for a full account of the Estate.

95.  This court is aware of the open proposal made by the Brother to resolve the matter by way of consent summons with no order as to costs. However, that was made on the basis of dismissal of the application, which the Widow rejected. Maintaining their argument till the end, neither party succeeds as a clear winner. In the circumstances, it may be appropriate to make no order as to costs between the parties.

96.  Hence a nisi costs order that there be no order as to costs between the parties. In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order.

POSTSCRIPT

97.  In view of the nature of the dispute and the relationship between the parties, this case should have deserved serious consideration of independent professional mediation when the proceedings were adjourned back in October 2024 at the latest. Those acting for the parties should have taken the initiative, as part of their discharge of the duty to advise, to advise on mediation instead of persisting in argument by way of correspondence which was equally costly engagement in terms of costs and time.