YAU SZE WA v. YAU MAN KON

HCMP 1112/2025

[2026] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1112 OF 2025

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J U D G M E N T

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1.  This is the hearing of an application by the Plaintiff, now 25 years of age, for an order that the Defendant be removed as executor of the estate of the Plaintiff’s father (“Deceased”) who died on 23 November 2014 when she was 13 years old. The Plaintiff’s mother had pre-deceased her father three years earlier. The Plaintiff was their only child.

2.  Before discussing the application, it is necessary to set out some relevant factual background.

Factual background

3.1  The Deceased was a one third partner with his brother the Defendant and their uncle Yau Leung Kwan (“YLK”) in a firm (“Joint Business”).  

3.2  In 2013, the Deceased was diagnosed to be suffering from a serious neurological illness, from which unfortunately there was no recovery. In April 2014, he went to Mainland China where he was admitted to hospital until September the same year, when he returned to Hong Kong and was admitted to hospital. He died less than two months later.

Deceased’s will

4.  By a will dated 30 September 2014 prepared by solicitors and written in Chinese (“the Will”), the Deceased named the Defendant and YLK as executors and trustees of his estate. Under the Will,

(a)  there was a devise to the Defendant of the Deceased’s share and interest in a property in Mainland China (“PRC property”). This property had been bought in the name of the Deceased’s wife before their marriage, who subsequently died intestate; 

(b)  there was a devise to the Plaintiff of two properties in Hong Kong: (i) the Deceased’s one-third share in a unit in a commercial property (“Po Yip property”) which he owned as tenants in common with the Defendant and YLK, and (ii) his solely owned family home;

(c)  the Plaintiff was appointed residuary beneficiary; and

(d)  it was provided that before the Plaintiff attained the age of 18 years, her entitlements under the Will would be held by the trustees in trust for her, with power to pay her living, educational and medical expenses therefrom, and upon her attaining the age of 18 years, they should be transferred to her.

5.  While the Deceased was in hospital in Mainland China, the Plaintiff stayed briefly with the Defendant and his family at their home in Hong Kong. That arrangement did not turn out well emotionally for the Plaintiff, she had an episode of self-harm, and subsequently she returned to stay at the family home, a foreign domestic helper being employed to look after her there. This arrangement continued after the Deceased’s death. The household expenses and the helper’s salary were paid by the Defendant.

Guardianship application by Aunts

6.1  After the Deceased’s admission to hospital, Lu Liming and Lu Lina, two sisters of the Plaintiff’s late mother (“Aunts”) who lived in Mainland China, came regularly to Hong Kong to visit the Plaintiff as she got along well with them.

6.2  In 2015, the Defendant terminated the helper’s employment, and the Plaintiff was looked after by the Aunts. Unfortunately, the Defendant and the Aunts did not get along.

6.3   In March 2015, the Aunts applied to the Family Court under the Guardianship of Minors Ordinance, Cap. 13 to be appointed the Plaintiff’s guardians. This was opposed by the Defendant and the proceedings were contested. On 31 March 2016, the Family Court appointed the Aunts as the Plaintiff’s guardians.

Probate action

7.  The Defendant and YLK did not apply for probate for some three years after the death of the Deceased. In December 2017, a caveat was filed on behalf of the Plaintiff which led to the Defendant and YLK commencing HCPA14/2018 (“probate action”) with the Aunts, in their capacity as the Plaintiff’s guardians, as defendants.

8.  During the course of the probate action, the Plaintiff attained majority in April 2019.

Tomlin Order

9.  On 6 December 2019, a Tomlin Order was made by consent in the probate action. The schedule to the order included the following terms:

(a)  YLK shall renounce his right as executor and trustee under the Will. On or before 31 January 2020, the Defendant shall apply to the Probate Registry for grant of representation with the Will annexed, with himself and Lu Lina as joint personal representatives.

(b)  Upon obtaining a grant in accordance with the above, the Defendant and Lu Lina as personal representatives shall jointly administer the Deceased’s estate in accordance with the Will save and except for the PRC property and shall use their best endeavours to complete the administration of the estate within six months after the said grant.

(c)  Clause 5 of the schedule provided:

“The parties acknowledge that there are uncertainties as to the Deceased’s entitlement in respect of the PRC Property under the laws of the People’s Republic of China (‘PRC’). Notwithstanding such uncertainties, it is agreed between the parties that:

5.1 The parties shall use their best endeavours (including but not limited to making all necessary applications to the relevant authorities and procuring the executions of all necessary documents) to procure the vesting of the PRC property to the beneficiary(s) who is/are entitled thereto under the laws of the PRC;

5.2 Upon the vesting of the PRC property to the said beneficiary(s), the parties shall use their best endeavour to procure the sale of the PRC property in the open market;

5.3 [The Defendant] … shall be entitled to the furniture (but excluding any other chattels and items belonging to the Deceased and/or the late mother of [the Plaintiff]) situated at the PRC Property;

5.4 Upon the successful sale of the PRC Property, [the Defendant] … shall be entitled to 50% of the net sale proceeds of the PRC Property (ie sale proceeds after deducting: (a) all expenses, fees and outgoings in connection with the applications to the relevant authorities in the PRC for the vesting of the PRC Property to the said beneficiary(s); (b) all expenses, fees and outgoings in connection with the sale of the PRC property; and (c) tax);

5.5 Upon receipt of 50% of the net sale proceeds of the PRC Property, [the Defendant] … shall have no claim against the PRC Property (whether under the Will or otherwise).”

(d)  Clause 6 of the Tomlin Order schedule provided that the Defendant and YLK shall furnish a summary of their claims (if any) against the estate with supporting documents to the Plaintiff on or before 31 January 2020. The clause provided that in making such claims against the estate, the Defendant and YLK expressly agreed to forgo any claims in respect of the Deceased’s share of management fees in respect of the Po Yip property.

10.  With reference to Clause 6 above, on 10 January 2020 the solicitors for the Defendant and YLK sent a copy of their “documents in support of their claims against the estate of … [the Deceased]”, adding that their clients “are still looking for other supporting documents in relation to this claim and will send you a copy of it to you in due course”. There was however, no follow up from the Defendant or YLK or their solicitors subsequently. No further claims were sent, but there was also no indication that there would be no further claims.

11.  Although it was envisaged under the Tomlin Order schedule that the Defendant and Lu Lina would be applying for a grant of representation by the end of January 2020, no steps were actually taken until 2023 due to Covid-19 restrictions on (amongst other things) entry into Hong Kong.

Application for probate by Defendant and Lu Lina

12.1  Eventually, on 4 December 2023, the Defendant’s solicitors sent a draft Schedule of Assets and Liabilities of the Deceased to solicitors acting for Lu Lina. Pausing here, the schedule included the Deceased’s one third share in the Joint Business; in other words, the business had not ceased prior to the death of the Deceased.

12.2  Thereafter, on 7 March 2024, the Defendant and Lu Lina made an affirmation to apply for Letters of Administration of the Deceased’s estate with Will annexed.   

Probate Registry query

13.  However, by two letters dated 9 April 2024 and 15 July 2024, the Probate Registry asked for clarification why Lu Lina was entitled to the grant when no minority interest arose and the Plaintiff, the sole residuary legatee and devisee named in the Will, was then already 23 years of age.

14.  This led to discussions between the parties as to whether the Plaintiff should be joint administrator with the Defendant in place of Lu Lina, or sole administrator, with the Plaintiff requesting the Defendant to renounce his executorship.  

15.  The parties having failed to agree, the Plaintiff issued an Originating Summons (“OS”) on 7 July 2025 for an order that the Defendant be passed over as executor and that she be appointed sole administrator with the Will annexed.   

16.  The application is made under that part of s.36 Probate and Administration Ordinance, Cap. 10 which provides that

“ … where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person … other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may … appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, … as the court may direct …” (emphasis added).

Discussion

17.  The Plaintiff, on whom the burden lies (Re Estate of Loo Che Chin [2013] 2 HKLRD 739, [11]), advanced four grounds in support of the application to pass over the Defendant as executor and to be appointed as sole administrator of her father’s estate with the Will annexed.    

18.  I shall discuss the first ground (the Defendant’s unsuitability to be sole executor or co-administrator), the second ground (efficient administration) and the fourth ground (hostility affecting administration) together, before dealing with the third ground (conflict of interests).

19.  The Plaintiff points first to the fact that the Defendant is now 76 years of age. In opposition to this ground, the Defendant has said on affirmation that he is in good health. There is no evidence to challenge that assertion. It is of course common sense that with every year that passes, an elderly person would be more likely to face challenges to good health, but in the absence of any specific evidence of concerns over the Defendant’s health, I would not regard his age as a ground for removing him had this been the only factor in this application.

20.1  The Plaintiff has also alleged that the Defendant is unable to handle books and accounts, and has criticized the way in which he and YLK supplied the summary of their claims against the estate on 10 January 2020.

20.2  The Defendant has been a businessman for many years and obviously must have some experience with books and accounts. However, it must be noted that the summary of claims was not well-prepared. What was meant to be a “summary of claims … with supporting documents” included funds received as condolence money (although this may have been included to offset the claims for funeral expenses), and there was some inconsistency between the amount of the claims and the supporting documents. According to the accompanying letter from their solicitors, YLK and the Defendant were “still looking for other supporting documents in relation to this claim and will send a copy of it to you in due course”. However, as noted above, there was no follow up in the years since. No further claims were sent, but there was also no indication that there would be no further claims. Then, in the present proceedings, the Defendant attached some new tables with supporting documents. This shows a lack of interest or, at least, a lack of efficiency in proper administration.

20.3  It would also be noted that the Defendant said in his affirmation that “recently, in light of the present proceedings, I had the opportunity to sort out the documents at home and the office” and retrieved a bank slip showing a withdrawal of RMB 45,000 from the Deceased’s bank account in September 2014. He regarded the withdrawal as “suspicious” as the Deceased was very ill by then.

20.4  The above suggests that it has taken the Defendant 11 years to sort out documents located at his home or office. He admitted he missed this “suspicious” document when preparing the draft Schedule of Assets and Liabilities for the application for probate. And apparently, he only sorted out the documents as a result of the present proceedings. Again, this shows a lack of interest or, at least, a lack of efficiency in proper administration.

21.1  The Plaintiff has also said that there is hostility between herself and the Defendant. It is common ground that the Plaintiff had emotional issues leading to physical self-harm while she was staying with the Defendant and his family when the Deceased was in hospital. This led to her returning to stay at the family home with first a helper, and then the Aunts who the Family Court later appointed her guardians despite opposition from the Defendant in contested proceedings. She has had no social interaction with the Defendant since then.

21.2  For his part, the Defendant says that hostility is not mutual. He says he had reached out to the Plaintiff (exhibiting WeChat messages from back in the day) but that his good intentions have not been appreciated. He is concerned that the Plaintiff may be influenced by the Aunts, and he says the Deceased did not trust the Plaintiff’s maternal uncle. Be that as it may, the upshot is still (as summarized by the Defendant’s counsel) that there was a “deterioration of relations” and the guardianship proceedings “generated acute personal animosity on P’s side, and following their conclusion, P unilaterally blocked the contacts and severed communications with D and his family” (Defendant’s Skeleton Submissions, para 9).

22.  It is not constructive for the court to delve into conflicting evidence as to what caused the Plaintiff to fail to get along with the Defendant, a situation which began a decade ago. The Plaintiff had, at an early age, lost first her mother and then her father (after a long and serious illness), and the Defendant was a businessman then in his 60’s who might have found an emotional teenage girl difficult to understand or discipline. But the reality is as follows. During her stay with the Defendant and his family, the Plaintiff suffered such stress that she physically harmed herself. Arrangements were made for her to return to stay at the family home with a helper only. The Defendant then opposed the Plaintiff’s wish to be looked after by the Aunts, leading to contested guardianship proceedings. The Plaintiff is obviously close to her Aunts, but the Defendant does not trust the relatives on her maternal side. And it is common ground that there has been no social interaction between the Plaintiff and the Defendant in the 10 years since, even though they live only one block away.

23.  While it is well-established that friction or hostility between executor and beneficiary per se is not a good reason for removing an executor (Loo [15]), hostility which affects the administration of the estate is a relevant factor (Loo, [13]). Counsel for the Defendant submitted that the hostility in the present case is not mutual as the Plaintiff says, but only one-sided, arising from the Plaintiff only. In my view, even if that is so, the events and poor relationship referred to above and the lack of social interaction over the last decade show objectively that the hostility, even if only from the Plaintiff, is genuine and was not fabricated as a pretext for the purpose of making the application (cf Loo [17]).     

24.  That is also why co-administration would not be workable. Co-administration of an estate requires regular contact, discussion and co-operation between co-administrators. In the words of the Defendant’s counsel, there has for the past decade been a “wall of silence” erected by the Plaintiff. Of course there may be communication through solicitors, but additional time and costs would be incurred which would not be in the best interests of the estate, especially a modest one like this. It is clear in my view that the present case is one in which hostility would affect the timely and cost-effective administration of the estate. There is no suggestion from either party for the appointment of a professional administrator, such as a solicitor or an accountant, which would of course add to the costs.          

25.  Finally on these grounds, while the Defendant has, under the Tomlin Order schedule, an interest in 50% of the net proceeds of sale of the PRC property and claims to be a creditor of the estate in the sums of HKD64,149.80 and RMB78,162.65, there is no doubt that the Plaintiff has been bequeathed the bulk of the Deceased’s estate. Clearly, she has the main interest in its speedy and efficient administration. As for her suitability as sole administrator with the Will annexed, she is now 25 years of age and is a university graduate. She can read English and Chinese, and can speak English, Cantonese and Putonghua. She has been working for two years and is currently employed as a trainee at a large public organization. There is no evidence that her developmental disorder would affect her ability to administer the estate.   

26.  The final ground for discussion is conflict of interests.

27.  The Defendant’s claims against the Estate, even if completely proven, are not large, and I need say no more about this.  

28.  As far as the PRC property is concerned, the Defendant has alleged that the Plaintiff may be conflicted. He alleged in his affirmation that it was he who paid for it even though it was bought in the name of the Plaintiff’s mother before she was married to the Deceased. Be that as it may, one of the terms of the Tomlin Order schedule was that he would be entitled to 50% of the net proceeds of sale, irrespective of who was found by the PRC court to be the beneficial owner(s) of the property. That is the objective interpretation of clause 5, and was agreed by both counsel at the hearing before me. Insofar as the Defendant suggests that if the Plaintiff were made sole administrator, his interests may be adversely affected because the Plaintiff may seek advice from the Aunts and maternal uncle, clause 5.2 allows the Defendant to participate in procuring the sale of the property on the open market. He is therefore protected and there is not much potential for conflicts as a result.

29.  However, there is scope for concern regarding the Defendant’s conflict of interests in respect of the Po Yip property. In the Defendant’s affirmation, he said the property “had been used as the office of the Joint Business without cost” and that after the Deceased’s death, “the Po Yip property has remained vacant and has not been subject to any tenancy agreement. Since [YLK] and I are also the beneficial owners of the Po Yip property, there is no question of rent or mesne profit arising from our use of the aforesaid property (if any)” (para 122). He then went on to say that the Plaintiff had no right to enter the property as there has not been assent and she had not previously indicated that she wished to do so (para 123). He also said that there were “rents, rates and management fees arising from the Po Yip property” which they had not asked the Plaintiff to contribute to, and that they had foregone their right to seek reimbursement under clause 5 of the Tomlin Order schedule (para 124). (Pausing here, in fact this clause only refers to management fees).  

30.  The following points in my view are relevant to the issue of the Defendant’s conflict of interests.  According to the draft Schedule of Assets and Liabilities of the Deceased as at the date of his death, his interest in 33.33% of the Joint Business was listed as his asset, meaning that the Joint Business had not ceased before his death. However (and this is not disputed by both counsel) a partnership terminates upon death. Accordingly, upon the Deceased’s death, he no longer had an interest in the Joint Business but he did have a one-third interest as tenant in common in the property (which had been bought for HKD682,900 in 1999).

31.  It is well established that certain duties of administration arise upon the death of the testator and before a grant of probate is made, as long as an executor has accepted his appointment. There is no argument that the Defendant had not accepted his appointment, and he did not renounce his appointment as YLK had done under the Tomlin Order. He was therefore under a fiduciary obligation to the beneficiary to exercise due diligence to preserve the estate. Counsel for the Defendant has not challenged this as a matter of law.       

32.  The issue is not whether the Defendant and YLK in their capacity as tenants in common had ousted the Plaintiff as a matter of property law (Cheung Lai Mui v Cheung Wai Shing [2021] 24 HKCFAR 116, [68-70]). The issue is whether the Defendant in his capacity as executor had failed to exercise due diligence in managing the estate, resulting in the Deceased’s share in the Po Yip property being left non-income producing for some 12 years.

33.  The Deceased died in November 2014. The Defendant did not make an application for probate in the three years until the probate action which led to the Tomlin Order. Obviously, this contributed to the overall time taken to vest the property in the Plaintiff which the Defendant now relies upon (as a tenant in common) to say that she is not entitled to any claim in respect of occupation of the property.

34.  In any event, it is not clear from the Defendant’s affirmation how the property has been occupied (or not). It is not clear when the Joint Business ceased to use the Po Yip property as an office. The reference in para 122 of the Defendant’s affirmation to his and YLK’s “use of the aforesaid property (if any)” (emphasis added) is ambiguous as to whether after the Deceased’s death, they had in fact used it or whether it was left vacant, as was suggested in the same paragraph. If it was in fact used by the Defendant and YLK as an office, the Defendant, wearing his executor’s hat, should have taken steps towards obtaining some income for their occupation, whether by way of rent, or licence fees, or some form of mesne profits. There is no evidence that the Defendant made any such proposals, nor even any evidence to say that he had reasonable grounds for thinking that such proposals would have been ineffectual.   

35.  The Defendant also said in his affirmation that the three partners had used the Po Yip property as a sort of social gathering place, but even if (after the Deceased’s death) the Defendant and YLK continued to use it for that purpose only, and not as an office, the same point applies.

36.  The same point applies if the property had been left completely vacant, without being used as an office or social gathering place. That makes no commercial sense. There is no evidence from the Defendant that in the 12 years since the Deceased’s death, he had made any proposals or attempts to put the property to some income-producing use, so that the Plaintiff would benefit from the Deceased’s share of it. This had been pointed out in the Plaintiff’s reply affirmation (paras 51-52) but the Defendant still took no action to remedy the situation (cf Lau Tung Hoi Kent v Lau Tung Kuen [2022] HKCFI 1921, where the defendant moved out of the estate’s property in which he had previously resided and put the property on the market).  

37.  In short, it is clear from the evidence that the Po Yip property has been left idle and non-income producing for the past 12 years, even though the Defendant says he and YLK had no use for it. I have noted above that that makes no commercial sense. It would appear that the Defendant had not only failed to apply for a grant for many years resulting in a delay to vest the title in the Plaintiff in good time, but had also failed to use due diligence in preserving or protecting the value of the Deceased’s share of the property.

38.  In view of the above, it seems to me at least arguable that the Defendant is conflicted as a result of his failure to properly manage and preserve the Deceased’s share in the Po Yip property. It is not necessary for me to make a definitive decision on this aspect in these proceedings and I do not do so. Suffice it to say that this is a material factor in passing over the Defendant as executor.  

39.  Finally, I would address the point emphasized by the Defendant’s counsel that the Deceased had chosen him (and YLK) to be executor(s). This is of course relevant as the Deceased would be expected to know the executors’ characters, attitudes and relationships, but it is not a conclusive factor in a passing over application (Loo [15]).  

40.  In the present proceedings, the evidence does show that the Deceased was very close to his siblings including the Defendant, but it would be noted that the Will was made when the Plaintiff was only 13 years of age. Although she was given the bulk of the estate, obviously she could not have been made executor then. Significantly, the Deceased had provided in the Will that her entitlements thereunder should be transferred to her when she turned 18 years of age. Whatever apprehensions the Deceased might have had regarding the Plaintiff’s maternal aunts and uncle, she is now at an age and has received sufficient education to think independently. It is hoped that she can approach the administration of the estate in a neutral manner, but if she fails to do so, the Defendant can apply to the court for appropriate orders, eg appointment of a professional administrator which would be costly and time-consuming, and ultimately not in the interests of all beneficiaries.  

41.  In these circumstances, approaching the matter holistically and fact-sensitively, taking into account the matters discussed above, I find it would be necessary and convenient to appoint the Plaintiff as sole administrator of the Deceased’s estate with the Will annexed.                  

Order

42.  There will be an order in terms of paras (1) and (2) of the OS filed on 7 July 2025.

43.  As for the costs of the proceedings, the Plaintiff asked in para (4) of the OS for an order that the costs be borne by the Defendant personally. At the conclusion of the hearing before me, the parties agreed that costs should follow the event, and counsel for the Defendant fairly did not suggest that costs be borne from the estate. Neither counsel made submissions on the other side’s statement of costs for summary assessment. Having considered the statements, I consider the Plaintiff’s costs to be reasonable and I would summarily assess them at $261,272.00.