WONG YUET YU v. CHAN HIU WAH

HCCA001452/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CEVEAT NO. HCCA001452 OF 2002

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D E C I S I O N

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The Dispute

1. This is a dispute between the parties as to who should be the administrator(s) of the estate of Mr. Wong Tin Lin, deceased (“the Deceased”).

The Background

2. The Deceased died intestate in Hong Kong on 23 July 1995, leaving an estate in the sum of about $1.3m (“the Estate”).

3. He cohabited with Madam Chan Kai Nin (“Madam Chan”) in 1960’s and they gave birth to 2 children:

(a) Madam Wong Yuet Yu, the Caveator herein (“the Daughter”) born on 22 January 1970, and

(b) Mr. Wong Tai Shing Ivan (“the Son”) born on 26 October 1972.

The Deceased and Madam Chan subsequently married to each other on 14 September 1977.  However, on 25 January 1994, the marriage was dissolved under FCMC 6760/1991.

4. On 13 May 1994, probably not known to Madam Chan, the Daughter and the Son, the Deceased married to Madam Chan Hui Wah, the Person Warning herein and the Applicant under HCAG008960/1996 (“the Wife”) in PRC.

5. Throughout the years, the parties disputed as to who should be the administrator of the Estate.  Regrettably, the matter cannot be resolved and has to be decided by this Court.  Before me, the parties’ position may be summarized as follows:

(a) The Wife asks to withdraw HCAG008960/1996 and submit a new application through 2 solicitors appointed by her under a power of attorney dated 2 March 2004.

(b) The Daughter agrees the withdrawal of HCAG008960/1996, but, she argues that

(i) both she and the Wife should be appointed as co-administratrices, or alternatively,

(ii) she alone is to be appointed as sole administratrix under section 36 Probate and Administration Ordinance (Cap. 10) (“PAO”). of the Estate.

6. The parties appeared before me on 26 September 2006.  Mr. T. Lee of Messrs. Hobson & Ma represented the Wife while Mr. J. Lui of Messrs. George Y.C. Mok & Co. acted for the Daughter.  Having heard from them, I reserved my decision to be handed down.  I now do so.

Ruling

7. Upon consideration of the evidence authorities and submissions before me, I have decided that the Wife’s application is to be agreed.  My reasons appear below.

(a) Joint administration is not viable because of the hostile relationship and lack of mutual trust between the parties.  They have spent over 11 years since the death of the Deceased disputing the matter.  By directing the Wife and the Daughter to be co-administratrices can never enhance but only impede the administration.

(b) It is not disputed that the Wife has a prior right than the Daughter to administer the Estate under rule 21 of the Non-Contentious Probate Rules (Cap. 10A) (“NCPR”).

(c) I agree that section 36 PAO does allow this Court a wide discretion to appoint the Daughter to be the administratrix if it appears to be necessary or convenient in the circumstances.  However, the Daughter has not adduced any evidence to establish any valid objection, like, badness of character, bankruptcy, extreme ill-health or any interest incompatible with due administration of the Estate on the part of the Wife (paragraphs 14.17 to 14.20 Tristram and Coote’s Probate Practice 29^th Edition at pages 449 to 450).

(d) With respect, the objections raised by the Daughter are not agreeable to me.

(i) She complained that surety guarantee was required under HCAG008960/1996 because the Wife resided in PRC.  However, if the Daughter worries that the Wife cannot protect her interest as well as that of the Son, surety guarantee indeed offers them a good protection against the possible mal-administration on the part of the Wife.  If it did happen, they could then choose to issue proceedings against the guarantors in Hong Kong, rather than the Wife in PRC.

(ii) The argument of surety guarantee has gone because the Wife is proposing to appoint 2 solicitors in Hong Kong to be her attorneys.  Nonetheless, Mr. Lui submitted that, by so doing, the Wife has in fact “renounced” as the administratrix.  I disagree with such proposition and concur with the submission made by Mr. Lee that rule 30 NCPR does allow the Wife, who is residing outside Hong Kong, to appoint lawful attorneys in Hong Kong to apply for the grant on her behalf.  Such arrangement is indeed not uncommon and can never be taken as renouncing the right to administer. Rule 30 NCPR states clearly that:

“30.  Grants to attorneys

Where a person entitled to a grant resides outside Hong Kong, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct

……”

(e) Finally, the Daughter also worries about the costs of the 2 solicitors.  However, with the assurance from one of the attorneys Mr. Ma Wah Yan that “[their] firm will not charge any extra costs for [their] partners acting as lawful attorneys” (paragraph 7 of the 2^nd Affidavit of Mr. Ma filed herein), this argument cannot sustain.  Probably, I would even go further to say that, even if costs might be increased a bit because of the appointment of 2 professional attorneys, it is worthwhile to do so in the interest of the Daughter because the possibility of “mal-administration” of the Estate by 2 solicitors in Hong Kong is certainly less than that of the Wife in PRC.

Order

8. In the circumstances, I will be making the following orders:

(a)	In relation to the Wife’s summons filed on 3 May 1996:
	(1)	The Applicant do have leave to withdraw her application for Letters of Administration in respect of the estate of the Deceased in Application No. HCAG008960 of 1996;
	(2)	The Applicant do also have leave to file a fresh application for the Letters of Administration through her lawful attorneys Ma Wah Yan and Wong Chi Leung nominated and appointed jointly and severally by her by virtue of the Power of Attorney dated 2nd March 2004;
	(3)	There be an order nisi that:
		(i)      costs of this application, including costs reserved on 26 May 2006 and the hearing on 26 September 2006, be to the Applicant and borne by the Caveator, to be taxed if not agreed, and
		(ii)     the Applicant’s own costs is to be taxed in accordance with Legal Aid Regulations.
(b)	As to the Daughter’s Re-Amended Summons, it will be dismissed with an order nisi that costs of the Applicant, including the costs reserved on 30 October 2002 and 23 April 2003 as well as the hearing on 26 september 2006 , be borne by the Caveator, to be taxed, if not agreed, and the Applicant’s own costs is to be taxed in accordance with Legal Aid Regulations.
(c)	Finally, as to the Daughter’s summons filed on 20 September 2006, there will also be an order nisi that costs be to the Applicant and borne by the Caveator, to be taxed, if not agreed, and the Applicant’s own costs is to be taxed in accordance with Legal Aid Regulations.