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HCMP 1455/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1455 OF 2010
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IN THE MATTER of LEUNG YUN SANG WILSON (梁潤生) late of Flat A2, 3rd Floor, Flora Garden, 50 Cloudview Road, Hong Kong, Insurance Underwriter, deceased.
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LEUNG KIT-HING, DORIS |
Applicant |
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| Before: Hon L Chan J in Chambers |
| Date of Hearing: 6 March 2013 |
| Date of Decision: 13 March 2013 |
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D E C I S I O N
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1. This is an appeal by the applicant against the decision of Master Levy dated 10 August 2012 which struck out her originating summons.
2. The applicant issued the originating summons on 30 July 2010 to apply for:
(i) the revocation of grant of letters of administration no. HCAG 002295/98 under section 33 of the Probate and Administration Ordinance, Cap 10 (“PAO”);
(ii) joinder of administrator under rule 23 of the Non-contentious Probate Rules, Cap 10A (“NCPR”); and
(iii) appointment as administrator pendent lite under section 40 of the PAO with rights and powers of a general administrator subject to immediate control of the court and to act under its direction.
3. The relevant statutory provisions are as follows:
Section 33 of the PAO:
“(1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.
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(3) 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 (other than the Official 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.”
Rule 23 of the NCPR:
“An application to join with a person entitled to a grant of administration a person entitled in a lower degree shall, in default of renunciation by all persons entitled in priority to such last-mentioned person, be made to the Registrar and shall be supported by an affidavit by the person entitled by the consent of the person proposed to be joined as personal representative and by such other evidence as the Registrar may require.”
Section 40 of the PAO:
“(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant are pending the court may, subject to section 25, appoint an administrator of the estate of the deceased.
(2) An administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate.
(3) Every such administrator shall be subject to the immediate control of the court and act under its direction.”
4. The applicant made an affidavit on 29 July 2010 in support of her application. She said in the affidavit that she was the sister by blood of the deceased Leung Yun Sang, Wilson. The deceased passed away on 27 March 1995 intestate. The deceased was survived by his wife Madam Cho and two sons. The sons were born on 7 August 1986 and 27 May 1990. They are now adults. The deceased had two sisters by blood namely the applicant and Madam Daisy Leung. The deceased’s parents pre-deceased the deceased.
5. Madam Cho applied for letters of administration on 25 March 1998. Since the two sons were minors at that time, section 25 of the PAO required that the letters of administration should be granted to at least two persons. Madam Cho then applied together with her own blood sister.
6. The applicant complained in her affidavit that Madam Cho had not made it known in her application of the existence of the two sisters of the deceased by blood. She said the sisters enjoyed a priority of entitlement to grant of administration under rule 21 of the NCPR. She suggested that the Probate Master should have made requisition on whether the deceased had any brothers and sisters who could apply in priority as co-administrator than Madam Cho’s sister.
7. I think the applicant has taken a wrong view of rule 21 of the NCPR. Rule 21 provides for the priority of entitlement to grant for persons having a beneficial interest in the estate. Since the deceased was survived by his wife and two sons, the three of them would be entitled to the whole estate under section 4(3) of the Intestates’ Estates Ordinance, Cap 73. The two sisters of the deceased therefore did not have any beneficial interest in the deceased’s estate. I do not regard the applicant’s desire to assist or protect the interests of her two nephews (the sons of the deceased) as a beneficial interest in the deceased’s estate. The applicant thus enjoyed no priority to grant under rule 21. The complaint of lack of requisition by the Probate Master also has no basis.
8. The applicant then said that the deceased had a flat at Cloudview Road which was held by his company Fordous Limited (“Fordous”). The deceased and Madam Cho were the directors of Fordous.
9. After the death of the deceased, Madam Cho procured Fordous to enter into a sale and purchase agreement dated 14 January 1996 to purchase another flat at South Horizons, Aplichau for HK$4.68 million. The agreement was completed by an assignment dated 20 March 1996.
10. Madam Cho then sold the flat at Cloudview Road for HK$4.38 million by an agreement of sale and purchase dated 2 February 1986. The sale was completed by an assignment dated 30 March 1996. The applicant complained that there was no vesting of any interest in favour of the minors upon the sale of this unit.
11. Madam Cho’s sister, the co-administrator was later appointed a director of Fordous. Fordous on 29 December 2001 entered into a sale and purchase agreement to sell the unit at South Horizons to Madam Cho for HK$2.9 million. The agreement was completed on 20 January 2002. Fordous in completing the sale was represented by Madam Cho’s sister as its director. The applicant complained that the sale of this unit to Madam Cho was at an under value and Madam Cho’s sister had breached her duties as the co-administrator because she was a trustee of the minor beneficiaries but had arranged nothing for them.
12. The applicant also said that it was wrong for Madam Cho’s sister to have been appointed the co-administrator.
13. Dealing with the complaint on the appointment of the co-administrator, I do not think there was anything wrong in appointing Madam Cho’s sister as the co-administrator. There was no person who had any higher priority of entitlement to grant than her. I have already indicated above that the applicant enjoyed no priority as she had no beneficial interest in the deceased’s estate.
14. Regarding the applicant’s complaint of mal-administration of the deceased’s estate, if the estate had indeed been administered irregularly to the prejudice of the sons of the deceased, it is a matter for the sons to pursue for their own benefit. They are now adults. The applicant has also produced a document purportedly showing the sons’ intention to pursue the deceased’s life insurance policy issued by National Mutual.
15. In any case, the applicant has no right to ask to be joined as a co-administrator of the deceased’s estate. She does not have any locus standi to apply to be appointed a co-administrator. She also cannot invoke section 33 of the PAO to revoke the grant as she is not a party interested in the deceased’s estate. She also has not demonstrated any basis for her to be appointed an administrator pendente lite.
16. She has no ground to appeal against the striking out order by Master Levy. Her appeal is hereby dismissed. I make a costs order nisi that there be no order as to costs.
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(L Chan) |
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Judge of the Court of First Instance |
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High Court |
The applicant appeared in person
Please refer to CACV67/2013 for the relevant appeal(s) to the Court of Appeal. |