RE KAN HAK MING

HCAG 8661/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 8661 OF 2012

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D E C I S I O N

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1.  This is an appeal brought against the deputy registrar’s decision, pursuant to r 62, Non-Contentious Probate Rules (Cap 10A). The deputy registrar earlier decided that the appellants, who are the applicants for grant of letters of administration, should first deal with another application for grant of letters of administration (HCAG 4883/2010 (“HCAG 4883”)) in respect of the estate of the same deceased person (“the deceased”).

2.  The application related to this appeal was earlier made by the appellants on the basis that, one of them is the executrix of the son of the common family of the deceased, and the other is the son of that common family.  On the other hand, the applicant of HCAG 4883 made the said application claiming to be the deceased’s brother.  For the purpose of this decision, the said executrix is treated as the son of the common family himself. 

3.  Relying on the observation of the decision in Re Estate of Wan Sing Hon [2010] 4 HKLRD 621, para 12 to 14, the appellants argue that deputy registrar’s decision is erroneous.  The error arose out of, so they argue, the court’s observation in Re Estate of Wan Sing Hon that a dispute relating to the identity of the persons to whom a grant should be issued is a secondary dispute; the probate master has jurisdiction to resolve such dispute by way of non-contentious business.  The above-mentioned requisition is thus redundant.

4.  Apart from the above mentioned applications for representation, one of the appellants is the claimant in HCAP 25/2012 (“HCAP 25”).  The defendant of that probate action is the applicant in HCAG 4883.  The parties’ respective case in that probate action, as set out in the pleadings, is in gist that:

(a)   the deceased was the lawful concubine the family head of which was the appellants’ father; the appellants were the lawful and natural descendants of the earlier marriage of the family head (that is, their father) with the lawful “kit fat” wife.  Accordingly, they are entitled to a grant as the children of that common family (of which the deceased was part);

(b)   the said concubinage is denied by the applicant of HCAG 4883, who counterclaims that he is entitled to a grant as the deceased’s lawful and natural brother.

5.  Further to the probate action, two applications were taken out therein by the parties:

(1)   the applicant of HCAG 4883 seeks summary determination of the invalidity of the claimed concubinage;

(2)   the appellants’ striking out application seeks to strike out the counterclaim therein on the ground that the applicant of HCAG 4883 attempts to impersonate as the deceased’s brother.

6.  Those applications have been heard by the court on 16 January 2014 and are now pending the determination of the court.

7.  In view of the matters set out above, the nature of the dispute raised by this application for grant, and the application for grant in HCAG 4883 (as reflected by the nature of the issues raised in HCAP 25, including the summary determination application and the striking out application mentioned above), goes beyond the “secondary dispute” mentioned in Re Estate of Wan Sing Hon.

8.  Consequently, I do not consider the deputy registrar to be in error in raising the requisition now challenged in this appeal.

9.  This appeal is accordingly dismissed.