LEE WAI HANG v. LAM PIK SIN, the Administratrix of the Estate of LIE FUI, deceased

HCMP 1032/2024

[2024] HKCFI 3357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1032 OF 2024

____________

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

Background

1.  Lie Fui (“The Deceased”) died intestate on 3 December 2020 and was survived by his parents, ie. the Plaintiff (“Father”) and the Defendant (“Mother”), who were divorced in 2001. This is the hearing of the originating summons filed by the Father on 18 June 2024 (“OS”) for an order requiring the Mother, the Administratrix, to

(1) render a true and perfect inventory and account of the Deceased’s estate,

(2) pay all sums found to be due to the Plaintiff after taking of the account, and

(3) distribute the Deceased’s estate.

2.  I am satisfied that the OS and notice of appointment to hear the OS have been served on the Mother. The Mother has not filed an acknowledgement of service or evidence in opposition.

3.  The uncontested evidence from the Father have been set out in the written submission of Mr Leung, counsel for the Father.

4.  The Deceased was aged 38 at the time of his death. He was never married and had no issue. The Father and the Mother are the only persons to share in the Deceased’s estate.

5.  Following the passing of the Deceased, the Father and the Mother came to a compromise (but not without some initial disagreements) that letters of administration in respect of the Deceased’s estate could be granted to the Mother. According to the Letters of Administration (HCAG 4512/2022) granted to the Mother on 28 December 2022, the Deceased’s estate comprised of a cash balance in the account under the name of “The Official Solicitor as the Committee of estate of Lie Fui” in the sum of HK$32,977, and the balance of the damages awarded to the Deceased in a personal injury action (HCPI 228/1996) and interest accrued in the sum of some HK$5.7 million collected by the Mother after the grant of the Letters of Administration. Among the liabilities of the estate, HK$66,772.30 (being costs of the Official Solicitor which were settled by the Father) are owed to the Father by the estate.

6.  Despite repeated requests and demands, the Mother has failed to administer the estate. No account has been rendered and no distribution has been made. The Mother has provided no explanation whatsoever for the delay.

The Law

7.  §56 of the Probate and Administration Ordinance, Cap. 10 (“PAO”) provides as follows:

“56. Duty of personal representative as to inventory

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.”

8.  A personal representative, after a grant has been made to her, owes a duty to collect and get in the real and personal estate of the deceased, and to administer it according to the law. She must act with due diligence in the discharge of her duties. It is also the duty of the representative to keep and to render a proper account of the administration of the estate. 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.

It is 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. See: Cheung Wai Ling Vicki v Cheung Oi Ling Aileen [2023] HKCFI 2819, §38, DHCJ MK Liu.

9.  As regards the distribution of the estate, §71 of the PAO provides as follows:

“71.Power to postpone distribution

Subject to the provisions of this Ordinance, a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death.”

10.  A personal representative is not bound to distribute the estate before the “executor’s year”. However, if there is delay beyond this one year, the onus would be on the personal representative to show valid reason for that delay. See: Chan Yeuk Nam v Chan Yeuk Shan [2021] HKCFI 3649, §29, Wilson Chan J.

Disposition

11.  On the basis of the Father’s unchallenged evidence, it is evident that the Mother has not discharged her duty to keep and render a proper account of or administer the Deceased’s estate. More than a year has elapsed since the grant of the Letters of Administration. The assets are not many and the administration does not appear to be complex. There is no perceivable difficulty for the Mother to distribute the same as the assets are all in the form of cash. The Father and the Mother are the only persons entitled to share in the Deceased’s estate. The most economical and sensible way forward is for the Mother to make a distribution as soon as practicable.

Reliefs

12.  The Estate is simple. It is not necessary to impose a duty on the Defendant to prepare accounts in accordance with Hong Kong accounting practice. She will have 14 days from the date of service of this order on her to provide the accounts in accordance with §8 above, supported by an affirmation of herself.

13.  The OS seeks an order for the Defendant to personally compensate the loss and damage suffered by the Plaintiff as a result of her breach of duty as administratrix of the Estate but no such loss or damage has been proved. There is also no basis to seek interest.

14.  Subject to the aforesaid, I make an order in terms of the OS.

Costs

15.  This application appears to arise wholly out of the inaction of the Defendant in failing to give a proper account and administer a simple estate. On a nisi basis, I order that the Plaintiff’s costs should be borne by the Defendant personally instead of out of the estate.

16.  This is an extremely simple application but as the Plaintiff’s solicitors have not waived common fund costs, I have no alternative but to order taxation of costs in the absence of agreement between the parties.

17.  There will be an order nisi along the terms of §§15-16, which will become absolute after 14 days. The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

18.  I thank Mr Leung for his assistance.