SHUM OI LUN HELEN v. WONG YUK CHING

HCMP 1189/2018

[2019] HKCFI 2854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1189 OF 2018

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J U D G M E N T

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Introduction

1.  By originating summons dated 2 August 2018, the plaintiff seeks an order that the defendant be removed as the administratrix of the estate (“Estate”) of Wong Wing Sze Alice (“Deceased”), and that the plaintiff be appointed as administratrix in her stead, with various ancillary orders including that the defendant be ordered to render a true and perfect inventory and account of the assets and the defendant’s dealings with the assets upon and since grant of the Letters of Administration.

2.  The plaintiff, now aged 81, is the daughter of the Deceased, who died intestate on 14 December 2007 at the age of 87.  The plaintiff had a younger brother Shum Ka Kit, and together they were the only lawful natural children of the Deceased.  As such, they were entitled to share equally in the Estate of the Deceased.

3.  Shum Ka Kit died on 18 October 2010 at the age of 71. By that time, no one had taken up any grant of representation of the Deceased.  The defendant is the executor and sole beneficiary of the estate of Shum Ka Kit.  The defendant thereby became entitled to Shum Ka Kit’s half share in the Estate of the Deceased.

4.  The defendant became the administratrix of the Deceased by Letters of Administration granted on 9 June 2015.  The circumstances in which that occurred are the subject of some dispute.  As at the date of the grant, the Estate apparently comprised cash in various currencies to the equivalent of approximately HK$6 million, and three real properties, (“Tung Fong Flat”, “Wan Chai Shop” and “Wan Chai Flat”).

5.  The plaintiff’s broad complaint is that the defendant has delayed in the administration of the Estate, and has failed to provide appropriate statements of account.  Whilst acknowledging that she may not have performed her role perfectly, the defendant points to the relatively simple nature of the Estate, and the fact that she has tried to resolve its distribution with the plaintiff on various occasions.  The defendant points to various distribution and/or settlement agreements, which on their face identify agreement reached with the defendant as to how to distribute the assets from the Estate.  The plaintiff denies properly entering into any of those agreements.

The Facts

6.  Each of the plaintiff and the defendant gave evidence at trial.  The defendant also called as a witness Yau Chi Wai Lawrence (“Lawrence”), the plaintiff’s eldest son.  In my consideration of the facts, I have taken into account my assessment of the witnesses, but I have also placed reliance on the contemporaneous documentation, as well as what seem to me to be the inherent likelihoods and probabilities.

7.  Though generally appearing alert when giving evidence, the plaintiff at times was confused.  She appeared to be surprised that she had been brought to court to give evidence, and apologised that she would have worn different clothing and no hat had she known she was coming to see a judge.  Strikingly, she could not confirm – and at points appeared vehemently to deny – making her own three affirmations filed in these proceedings. She was unable to recall their content as having been interpreted to her before making the affirmations, or giving instructions to her solicitors in preparing them.  As a result, she was not really able to adopt the content of the affirmations as part of her oral evidence.  Nevertheless, I think I can properly record such weight to the affirmations as seems to me to be appropriate against the totality of the evidence.  However, the level of confusion and internal inconsistency within the plaintiff’s evidence to my mind makes quite a proportion of it unreliable.  For example, at one point in her oral evidence she laid claim to the entirety of the Estate, notwithstanding her consistent written evidence that she was (as is correct) entitled only to a half share of it.

8.  On the other hand, the evidence given by the defendant was generally consistent with her affirmations, and what had been written contemporaneously by her solicitors.  She appeared to be relatively frank, and subject to testing against other evidence, I tend to accept her evidence as being broadly reliable.

9.  In her first affirmation the plaintiff says that she did not know that the defendant had become the administratrix of the Estate until informed about that by Lawrence in about March 2016.  She says that it was also at that time that she was told that her mother, the Deceased, and her brother, Ka Kit, had already passed away.  Though I do not accept that the plaintiff has the date correct, the evidence seems to me to make clear, and I find as a fact, that the plaintiff had for all practical purposes lost touch with both the Deceased and her brother for many years.

10.  Where the plaintiff was unaware of her own mother’s and brother’s deaths for several years respectively after each passed away, it is unsurprising that someone else took up the letters of administration of the Deceased.  Insofar as the plaintiff has alleged that the defendant made an improper application for the letters of administration, based on misrepresentations, I reject that allegation.  However, I also note that the plaintiff herself in cross-examination expressed being unable to recall making any accusation of misrepresentation by the defendant in the application for the letters of administration.

11.  I accept that the defendant placed an advertisement in a newspaper on 9 November 2012 asking the plaintiff to contact her, and a copy of the advertisement was produced in evidence. But no direct contact had been made by the plaintiff before the defendant applied for the letters of administration.  Whilst I acknowledge that it may have been possible to locate the plaintiff by other means, because the plaintiff is a well-known fiction writer (albeit using a nom de plume, based on her true name), I do not think it was in any way unreasonable for the defendant to have gone ahead with the application for the letters of administration.

12.  There was, however, some indirect contact.  This was because Lawrence apparently saw the newspaper advertisement looking for his mother (the plaintiff), and he approached the defendant.  He did so, notwithstanding that he had informed the plaintiff of the advertisement, but she had told him that she did not know the defendant so not to bother contacting her.  When Lawrence approached the defendant, she asked for some proof that his mother was the beneficiary, but heard nothing further from him for almost a year, so decided to apply for the letters of administration.  In his evidence, albeit some order of facts varied between the written and oral evidence, Lawrence broadly corroborated this account, and I accept it as correct.

13.  Subsequently, in October 2015, the defendant was having lunch at a Chinese restaurant when by chance Lawrence approached her and asked whether there were any developments concerning the Estate. The defendant told him that she had been appointed as administratrix.  Lawrence said that he was having lunch with the plaintiff at another table, and invited the defendant to come and join them.  When the defendant did so, the plaintiff was able to describe historical events about the Deceased’s family in some detail, so satisfying the defendant that the plaintiff was the daughter of the Deceased.  Therefore, the defendant told the plaintiff that she would share fairly in the distribution of the Estate, and that she would need lawyers to handle the matter.  In his evidence, Lawrence also corroborated this part of the account, and I accept it as correct.

14.  In her second affirmation, the plaintiff denied the meeting in October 2015.  But a photograph was taken, which the defendant was able to produce in response.  I reject the suggestion offered by the plaintiff in her oral evidence that the picture might have been created from two other pictures, and the suggestion that the picture would not have been genuine if it had not been paid for because people pay to have their picture taken with the plaintiff, which amount she gives to charity.  Rather, I accept the meeting did take place as described by the defendant.  I also accept that the plaintiff identified Lawrence as the person who could represent her in discussions with the defendant, and with any lawyers instructed to handle the matter.

15.  Indeed, following that meeting, discussions did eventuate and lawyers were eventually instructed, though it is fair to say that no rapid progress was made.  In around December 2017, the plaintiff was told by Lawrence that the defendant had made proposals for distribution of the Estate. I accept that the proposals were essentially agreed between Lawrence and the defendant, though they would need the agreement of the plaintiff.  Lawrence confirmed in his evidence that he thought the proposal was fair to the plaintiff.

16.  In April 2018, the plaintiff was told by Lawrence that the defendant’s solicitors thought the plaintiff should appoint her own lawyers to handle the matter.  In May 2018, the defendant gave $40,000 to Lawrence for the appointment of lawyers for the plaintiff.  The defendant also later gave a sum of $200,000 to the plaintiff’s daughter towards the expenses for care of the plaintiff.  A firm of solicitors (“WFC”) was appointed by the plaintiff to represent her on 26 May 2018.  They entered into correspondence with the defendant’s solicitors (“LWL”), which continued between 28 May and 13 July 2018.

17.  On 4 June 2018, a proposal was made to the plaintiff by the defendant through LWL for distribution of the Estate, being the Tung Fong Flat and approximately over $5 million to the plaintiff, and the Wan Chai Flat and the Wan Chai Shop to the defendant.  But WFC apparently advised the plaintiff not to accept that proposal, at least not before the defendant had provided copies of various valuation reports and other documents relating to the Estate and its administration.

18.  The demands for documents made by WFC continued in June and early July 2018, and that was later coupled with a demand for a partial distribution of $2 million.  WFC reserved their client’s rights to start proceedings.  At the time, the defendant was not in Hong Kong, and she returned on 17 July 2018.  Thereafter, with a view to reaching an agreement whereby the Estate could be distributed without the incurring of further legal expenses or professional fees, the defendant went to the plaintiff’s home to discuss matters with her on 21 July 2018.

19.  In those discussions, the plaintiff understandably made clear to the defendant that she preferred cash to be paid to her, rather than to have real properties. After about 1½ hours discussion, the defendant says, an agreement was reached whereby the plaintiff would take all the cash in the Estate and the Tung Fong Flat.  Also present was a Mr Fu of another solicitors firm (“CSC”).  At the meeting, the plaintiff signed a document authorising Mr Fu and CSC to represent her, in place of WFC.  Mr Fu helped put the agreed terms in writing, and the parties signed that agreement.  However, after realising that certain expenses had not been taken into account and that more time would be needed to arrange cash payment, that agreement was replaced by another agreement which the plaintiff and defendant also signed.

20.  In her evidence, the defendant explained that Mr Fu clearly and repeatedly ascertained from the plaintiff whether she was ready to give instructions to his firm, and he pointed out that he was not representing the defendant.  When the plaintiff agreed, she signed the authorisation. Subsequently Mr Fu reduced the agreements made into writing.  I accept that the later suggestion from the plaintiff’s solicitors that she was asked to sign pre-typed agreements cannot be correct when the initial and replacement agreement signed were handwritten by Mr Fu.

21.  Following the meeting, CSC wrote on 23 July 2018 to WFC, enclosing the authorisation letter signed by the plaintiff and asking for transfer of the files.  In response, WFC stated that the plaintiff instructed them that she had never instructed CSC in place of WFC, and gave the plaintiff’s version of what happened at the meeting at her home on 21 July 2018.  Essentially, it was alleged that the authorisation letter was achieved through deception, and that the plaintiff had been pressured to sign documents which were prepared and typed in advance.

22.  In later correspondence dated 26 and 30 July 2018, CSC explained its position.  In brief, CSC and Mr Fu had been introduced by Lawrence, who had informed Mr Fu that the plaintiff intended to appoint another legal representative to act for her.  So Mr Fu attended to ascertain the plaintiff’s intentions and instructions.  At the meeting, the plaintiff indicated that she wished to settle the Estate matters in a simple way, by taking all bank balances of the Deceased as well as the sale proceeds of the Tung Fong Flat, which she accepted might take two years to realise. Whilst Mr Fu assisted in noting the terms of the agreement, those terms were the conclusion of discussions between the plaintiff and the defendant.  Mr Fu did, however, specifically ask the plaintiff if she was ready to sign the agreement, and she reviewed and confirmed accepting the terms before signing it.

23.  Though Mr Fu was not called to give evidence, the contemporaneous letter written by his firm seems to me to corroborate the account of the meeting given by the defendant.  I do not accept as correct the embellishment given by the plaintiff during her oral evidence that she was somehow tricked into signing papers by being given a pile of papers to sign, amongst which were the relevant documents now relied on by the defendant.  Nor was I impressed by the suggestion offered in the oral evidence that she had not even actually signed the documents, even when shown her signature on them during oral evidence.  That suggestion was, of course, contrary to the plaintiff’s case on affirmation that she had signed the documents, but had done so under a misconception or misrepresentation.  When this inconsistency was put to the plaintiff, and she was asked to clarify what her case was, she said no one had deceived her into anything.

24.  Under cross examination, the defendant gave further details about the meeting.  Not all of the 1½ hours was spent discussing possible agreement for distribution of the Estate, as the plaintiff did not ask for any detail, and was more keen on talking about matters from the past.  Nor did the defendant offer any explanation as to what had happened to the assets in the Estate since the time she took the letters of administration. Nevertheless, in all, I accept that agreement was reached between the plaintiff and defendant at the meeting, and that the defendant signified she was content with that agreement, and that is why she signed it.  I do not think that surprising, and I do not think she would have been particularly concerned about the detail of the Estate, so long as she was to take mainly the cash as her share, together with one of the properties or its sales proceeds.

25.  All of this seems to me to be necessarily viewed against the context.  That context includes that the plaintiff had lost touch with the Deceased, her mother, for probably decades, and so likely had no knowledge – and so no expectation – of any likely or potential inheritance. Indeed, when the defendant first sought to make contact with the plaintiff about the Deceased, the plaintiff instructed Lawrence to ignore that attempt, and it was only by chance that there was the meeting later in the Chinese restaurant which led to the discussions and agreement.  Also part of the context is the fact that the plaintiff was getting on in age herself, and so would have been more interested in securing an agreement which provided her with a satisfactory cash element, sooner rather than later.

26.  Unfortunately, what appears to have happened is that the plaintiff’s solicitors took the firm view that she ought not to have reached that agreement, and so sought to undo it.  I make no particular criticism of the solicitors, who no doubt thought that they were doing their best to protect their client’s best interests.  But in the context of a relatively simple Estate, which might have been fairly and easily distributed, at least on a rough and ready basis, what has happened instead is this litigation.

27.  The originating summons was issued by the plaintiff on 2 August 2018.  The plaintiff filed her first affirmation in which she made the original complaints that the defendant had failed in her duties as administratrix of the Estate.

28.  In the defendant’s first affirmation, she made her response. She stated that to simplify the administration and facilitate disposal of the Estate, she had converted all foreign currencies into Hong Kong dollars in about July 2017 which, added to the cash at bank already in Hong Kong dollars, totalled $5,937,418.84.  She also arranged simple valuations of the properties, of the sort normally given by banks for the purpose of granting mortgages, showing the Tung Fong Flat at $3.8 million, the Wan Chai Flat at $3.8 million, and the Wan Chai Shop at $7.3 million. She also identified the rental receipts which she had been able to obtain from the latter two properties.

29.  The defendant denied delay, by stating that within two years of finding the plaintiff, an agreement on distribution of the Estate had been reached. But, notwithstanding that agreement, thereafter she continued to be peppered with requests for information.  The defendant asserted that she had faithfully reported on the assets of the Estate, and was always prepared to distribute the plaintiff’s share to her, according to the agreement made, or any other agreement acceptable.  She identified that the Estate retained the real properties and cash of $6,383,066, of which $6 million is kept in a fund, and the rest in liquid cash.

30.  In a lengthy second affirmation, which has the hallmarks of being written with close legal or forensic analysis (which may be why the plaintiff was unable to recall giving instructions as to its production), the plaintiff appeared to engage in a point by point critique of the matters disclosed by the defendant.  Various suspicions were voiced about the truth of statements made by the defendant, and an allegation was made that the defendant had used the Estate to earn a secret profit for herself.  A specific denial was made that there was any agreement on distribution of the Estate.

31.  In a short response, the defendant in her second affirmation answered some of the points of criticism, in particular as to certain items of expenditure.  She repeated what was said in her first affirmation about the administration of the Estate, and also restated that she was prepared to distribute the plaintiff’s share to her according to the agreement already made or other proposals which the plaintiff is willing to accept.  She echoed a call made in her first affirmation that the matter might better be resolved through mediation, rather than litigation.

32.  As an aside, I also note that in closing submissions made for the defendant, she again proposed the practical alternative of resolving matters with the assistance of a professional mediator.  But this is an invitation that has not been accepted at any point, and I do not think I can order mediation.

33.  In her third affirmation, again with significant forensic or legal detail, the plaintiff appeared to state that no agreement was necessary as regards the distribution of the Estate, so long as it was distributed according to the law.  It was said that the real dispute was that the defendant had failed and continued to fail to provide a full and proper account of the assets to the Estate, and to make distribution accordingly.  The plaintiff also criticised the stance in the proceedings of her son, Lawrence.

34.  I have already dealt broadly with the content of the plaintiff’s affirmations, in so far as it does not amount to legal or forensic analysis and critique.  Some of the critique seemed to me to lose sight of the wood for the trees.  That analysis and critique was put to the defendant in cross-examination.  The defendant acknowledged, as had been stated in prior solicitors’ correspondence, that she had failed to open separate bank accounts to deal with the Estate assets.  She accepted this was her fault, but said did not know she should keep separate accounts.  As a result, the Estate monies had become mingled with her own.  This has necessarily given rise to some degree of obscurity about the Estate.  The defendant also accepted that she might yet be able to get further documents which would allow her, or perhaps someone else, to conduct more analysis.  I can further deal with some of the evidence under the ‘Analysis’ section below.

The Law

35.  An administrator (or administratrix) of an estate has a duty to account to the beneficiaries of the estate. The account to be kept must be clear and accurate, and the administrator should always be ready to render such account when called upon to do so.

36.  As various authorities identified to be settled law, to render a proper account of the estate of a deceased person, the personal representative is, generally speaking, required (1) to show the opening balance, including capital assets, and the closing balance; (2) to give details of movement of assets, income and expenditure of the estate; (3) to give details of the whereabouts of all properties, including cash of the estate; and (4) to support the account with documentary evidence.  It is ordinarily not acceptable for the personal representative merely to give to the beneficiary a bundle of documents relating to the estate and leave it to the beneficiary to sort out the documents himself.

37.  Section 33(3) of the Probate and Administration Ordinance Cap 10 provides that the court may, if satisfied that the due and proper administration of the estate and 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 his place, and for the vesting in that other person any property belonging to the estate.

38.  In deciding whether to remove an administrator, the proper question to ask is whether the removal is necessary for the due and proper administration of the estate, and whether it is in the interests of the beneficiaries for the administrator to be removed.  That does not mean it is necessary to establish specific wrongdoing, misconduct or fault, though obviously such conduct would be a relevant consideration.  A failure to render a full and proper account when called upon to do so, which can be seen as a breach of a fundamental and important duty of an administrator, may in appropriate circumstances be good reason to justify the removal of an administrator.

39.  However, the court should also have regard to the size of the estate, the nature of the assets to be administered, and the background, education, training and experience of the remaining personal representatives.  Hence, if the administration of the estate is a simple matter, it may in some circumstances weigh against removal.

Analysis

40.  As to the allegation of delay, I accept that there was little that the defendant could do to distribute the Estate before she actually met the plaintiff at the Chinese restaurant in October 2015.  Much of the time between the meeting at the restaurant and the commencement of these proceedings was taken up with negotiations, even if they did not move quickly or smoothly.  However, I accept that it was the defendant’s aim to effect a peaceful and agreed distribution of the Estate.  Indeed, the evidence points to some eagerness on the part of the defendant to see a fair distribution made, taking full account of the plaintiff’s own wish to get as much cash as possible.  There were two occasions on which agreement had apparently been reached as to how the assets in the Estate were to be distributed, and the plaintiff would have received distribution but for the advice of her solicitors after the agreements were made.  Therefore, I do not think that the allegation of delay is made out in the circumstances.  Indeed, greater delay has probably been caused by the institution of proceedings.

41.  There is more force in the criticism that the defendant has failed to account, and seems presently unable to do so.  In his closing submissions, Mr Chung has pointed to various features.  First, he points to the fact that the defendant has openly admitted that she had mixed up the cash belonging to the Estate with her own.  Secondly, he points to a gap in the evidence as to what some cash was used for by way of an investment. Thirdly, as to the monthly rentals received and the accounts to which rental payments were made, the requesting correspondence was not answered but the defendant said in oral evidence that the payments were split between her BOC account and her ICBC account, though no statements of those accounts have ever been disclosed.  Further, the calculation of the cash in the Estate offered by the defendant as at July 2017 plainly did not take account of monthly rentals by then received.

42.  Mr Chung also pointed to the unsatisfactory answers given by the defendant in relation to two of the items of claimed expense.  The first was as to a legal fee of $175,240 relating to the Tung Fong Flat, and the second relating to a plane ticket (for the defendant’s daughter to travel to Hong Kong to stand as guarantor for the grant to the defendant of letters of administration).

43.  Doing rough calculation, Mr Chung identifies that the Estate had cash of around $6 million, including the foreign currencies, as at 2007.  Even accepting the defendant’s case as to stated general expenses at a little over $537,000, against rental receipts of $1,222,800, the balance would be slightly over $6,685,000.  Deducting the $240,000 paid to the plaintiff, the balance should still be over $6,445,000. So, says Mr Chung, the Estate is apparently no better than having its cash left in the bank accounts untouched.  There is also the mismatch in evidence about the amount of liquid cash the defendant says she maintained, starting with approximately $383,000, which cannot be seen in the bank account statements disclosed.

44.  On the other hand, Mr Tsui submits that in her first affirmation, the Defendant broadly provided information in line with the requirements for giving an account.  He says the defendant stated the opening balances of the cash at bank, converted into Hong Kong dollars, at a total $5,937,418.84, from which could be deducted expenses of $537,152.09 (a figure supported by receipts where available), and to which could be added the income of rent from two properties totalling $1,222,800 (supported by the tenancy agreements concerned).  The defendant stated the closing balance of cash of $6,383,066.75, with $6 million kept in a fund with a bank.  (For this purpose, any investment lost is ignored.)  The defendant also identified the three real properties, with valuations supported by the findings of a valuation agency.

45.  So, whilst the defendant has admitted out of ignorance not opening a separate bank account for the Estate, which would have streamlined its reporting, monies from the Estate and income were maintained. Mr Tsui says that the defendant was careful to keep the assets safe, and to make sure that there were sufficient funds for the Estate to be distributed.

46.  I am prepared to accept that the conversion of foreign currencies into Hong Kong dollars was understandable and reasonable.  I also accept that the rental of the properties has been reasonably explained, including the explanation that the Tung Fong Flat was kept vacant after the Deceased’s domestic helper moved out in 2016, so that it could more easily be given to the plaintiff.

47.  I also do not think that there is evidence from which it would be right to draw any inference that the defendant has made personal gains from the Estate, or indeed has even sought to do so.  Whilst it was certainly not good practice for the various Estate and personal funds to have been co-mingled, I accept that this was to an extent understandable albeit inappropriate.  There remains the broad ability to identify a distinction between the assets which should properly belong to the Estate, and those which belong to the defendant herself.  It seems to me that, in her own way, the defendant has attempted to keep that broad distinction in mind.

48.  Part of the reason why the failure to have kept the relevant assets separate is to an extent understandable is that the defendant has sought to agree the division of the Estate on a roughly equal basis between the plaintiff and herself.  On her case, she has actually reached such an agreement at least once.  That approach of seeking to agree a fair and equitable division, including providing significant cash to the plaintiff, go some way to off-setting the failure to have kept matters in such a way that an account could readily be provided whenever requested. 

49.  Also, as I have indicated, there are some documents which properly support expenses paid, and which help to identify income received.  I accept Mr Tsui’s submission to the effect that, though the law requires a “perfect” inventory and account of the Estate, some proportionality can be borne in mind, and there is no authority stating that in discharging her duty the Defendant must be able to produce receipts for each and every item of expenditure, however small.

50.  If I were to form the view that the defendant should be removed as administratrix, I do not think the plaintiff would be an appropriate candidate to be appointed in her place.  The plaintiff has not demonstrated that she is reliable, but rather the opposite.  I accept the submission that the plaintiff has a propensity to change her mind, evidenced in part by her reneging on four documents written in Chinese which she signed, firstly alleging that she was tricked into signing them, then going so far as to identify them as fake.  In his closing submission, Mr Chung does not really maintain the suggestion that the plaintiff should be appointed in place of the defendant.  Rather, his ‘target’ is the appointment of a professional administrator.

51.  As to the possibility of appointing a professional administrator raised in argument for the plaintiff, Mr Tsui points out that this was not relief sought in the originating summons. But, he says, in any event the simplicity in the nature of the assets of the Estate does not justify the cost that would be involved.

52.  Nevertheless, in his closing submissions, Mr Tsui stated that the defendant proposes to appoint an accounting professional to assist her to provide a further account under professional scrutiny.  Because of the time necessary for obtaining missing bank statements, the defendant seeks 56 days to do so (though it may be the defendant has been seeking those statements in the time since trial).  At the same time, the defendant proposes to appoint a professional surveyor to do valuation of the three properties.  Thereafter, distribution would be straightforward.

53.  I am persuaded that this is the appropriate way forward.  It may be thought to be something of a middle route between (a) replacing the defendant with a professional as administrator and (b) not replacing the defendant at all.  In the overall circumstances I have described, in the exercise of my discretion, I do not think it is necessary for the due and proper administration of the Estate or in the interests of the beneficiaries for the defendant to be removed as administratrix.  But I do think it would be helpful for her to have some professional assistance in performing her duties, from a professional accountant.

54.  As to the issue as to who should meet that accountant’s fees, I reserve that matter back to myself.  On one argument, the fees could come out of the Estate, as part of the cost of its administration. But I also see the argument that the fees may have been necessitated through the failure of the defendant to take the degree of care that she might have done in her conduct of the administration.  Previous opportunities to improve on the accounting have not been fully taken.  Indeed, the emphasis made for the defendant that this is a simple Estate tends only to show that the need for some professional help has arisen because the matter has been made complicated by the defendant’s approach.  At present, I would be minded to make the defendant bear at least some of the expense herself, but I leave this question open as the answer may be influenced by what the professional assistance turns up.

55.  I can deal with the question of those costs when the matter comes back before me with the benefit of the assistance to be provided by the professional accountant.  With that assistance, I expect to be able to identify with sufficient clarity the final state of the Estate to be divided.

56.  The costs of the professional surveyor for valuation of the real properties are costs which are properly to be borne by the Estate.  Of course, those costs could be avoided if the parties are able to agree valuations for the purposes of the distribution.

57.  Nevertheless, against the history of matters including the agreements apparently previously made, and the rationale behind them, I do not see why the plaintiff should be kept out of at least a significant sum of cash for any further period of time.  Therefore, I direct the defendant to make an immediate payment of $4 million to the plaintiff, on account of the final distribution to be made in accordance with my subsequent directions, after the matter is brought back to me.

Result

58.  I dismiss the application for the removal of the defendant as administratrix of the Estate, and the application that she be replaced by the plaintiff.  However, I do so in part on the assurance from the defendant that she will instruct a professional accountant to assist her to provide a further account within 56 days.  She must bear the costs of that accountant in the first instance, and I will deal with whether those costs are to be borne by her or by the Estate when the matter is brought back before me.

59.  In the interim, the defendant must make an immediate payment of $4 million in cash to the plaintiff.

60.  I will fix a short, 30 minute, hearing for shortly after the expiry of 56 days, at which I will either resolve any outstanding questions or fix an early further and longer hearing, if necessary, for resolution of those questions.

Costs

61.  I shall also reserve the question of costs.  It seems to me that the question of costs may be influenced by the results of the assistance provided by the professional accountant, and I may wish to take into account my findings that prior agreements appear to have been reached between the plaintiff and the defendant as to distribution of the Estate on a consensual basis (even though neither party has formally sought to stand on any prior agreement for the purposes of this litigation).