YU HONG PING AND ANOTHER v. KENNETH YUEN

HCMP 1104/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1104 OF 2009

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J U D G M E N T

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1.  This application is made under Section 33(3) of the Probate and Administration Ordinance [“PAO”] for the removal of one of the executors.  The application is not contested.  In fact, the executor to be removed is one of the Plaintiffs and he consented to his own removal due to old age.

2.  The court can only make an order upon being satisfied that the due and proper administration of the estate and the interests of the beneficiaries so require.  The order has to be made in an action, usually commenced by Originating Summons.

3.  Such an application does not fall within the scope of non-contentious or common form probate business as defined in Section 2 of PAO as it is not part of the process leading to the grant of probate or administration and it is a proceedings in an action. 

4.  Section 5(1) of the PAO only confers jurisdiction on a maser to grant a probate or administration or to amend or re-seal the same.  It does not cover removal or succession (which in essence means substitution) of personal representatives.

5.  This construction is reinforced by the English practice under Section 50 of the Administration of Justice Act 1985 [“AJA 1985”].  Claims for removal or substitution of personal representatives are assigned to the Chancery Division, see CPR Part 57.13.

6.  Subject to one point, a master may derive jurisdiction from Order 32 Rule 11 to make an order in an action for removal of personal representative.  In England, a Chancery master can exercise the power under Section 50 of the AJA 1985, see Dobson v Heyman [2007] EWHC 3503 (Ch) even if the matter is contentious.

7.  Order 32 Rule 11 gives a master the power of a judge that could be exercised in chambers.  But Order 28 Rule 3A provides that an originating summons must be heard in open court unless the court otherwise directs.

8.  Given the non-contentious nature of the application, having regard to the expertise of our masters in dealing with probate matters (the probate master is already dealing with appointment of additional personal representatives under Rule 24 of the Non-Contentious Probate Rules), I see no reason why the matter cannot be adjourned to chambers to be dealt with by a probate master.

9.  In other words, a direction is made under Order 28 Rule 3A that the matter is adjourned to chambers and it will be considered by a probate master.

10.  I also take this opportunity to mention that the original grant should be lodged in court by the personal representative pending the outcome of the application.  If an order is made for removal of one of the executors, it will be endorsed on the original grant.  The same applies to substitution of personal representatives.

11.  In line with the underlying objectives set out in Order 1A Rule 1, in a non-contentious application of this nature, I see no reason why it cannot be disposed of on papers.  Of course, the court has to ensure everyone affected has been given an opportunity to be heard.  It is said in the affirmation that all the beneficiaries consented to the application.  Provided that this is confirmed in written consents signed by them, the master can exercise his discretion without a formal hearing being conducted.

12.  This does not mean that the court is acting as a rubber stamp in non-contentious applications.  Section 33(3) requires the court to be satisfied with the statutory criteria before it can exercise its discretion.  In the exercise of its discretion, the court should have regard to the size of the estate and the nature of the assets that needed to be administered, the background and the education, training and experience of the remaining and substituted personal representatives and the interest of the beneficiaries (especially if there is minority or disability interest).  The Plaintiffs in this case may need to supplement information in this regard to facilitate the consideration of the application by the master.  If there are other matters that need to be addressed, the master can give paper directions.

13.  In the future, similar cases may be dealt with in a similar manner.  To facilitate that, solicitors acting for the plaintiffs should state in a covering letter that the application is non-contentious and confirm that the following documents are filed.  The original grant should be lodged.  If the personal representatives have partially administered the estate, they should file an account together with the application.  The written consent of all parties interested (including the beneficiaries) should also be filed at the same time.  The papers will then be placed before the probate master to see whether the case can be dealt with on papers or be referred to a judge.  The master can also give further directions on papers.

14.  For contentious applications, they would be fixed and heard by a judge in the usual manner.