RE LI YIP WANG

HCEA 38/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO. 38 OF 2005

_________________________

_________________________

_______________

D E C I S I O N

_______________

Application

1. Section 36 of the Probate and Administration Ordinance (Cap. 10) (“PAO”) gives a wide discretion to this Court to appoint somebody in appropriate circumstances to be the administrator of the estate of a deceased person.  The question as to how far the practitioners could rely on it appeared before me on the 6th application on the Non-Contentious Probate List.

Background

2. The Deceased died on 2 December 2002 in Hong Kong.  He left a Will dated 12 March 2001 appointing his wife to be the sole executrix and trustee.  By the Will, the Deceased gave, devised and bequeathed:

(a) $1 m to the Chinese Language Society of Hong Kong Limited,

(b) $2 m to two ladies upon trust for the maintenance of the general Li Fook Lam Tomb, and

(c) all his residuary estate to his wife absolutely.

3. The wife did not apply for the grant and executed a renunciation on 25 January 2005.

4. On 4 February 2005, a total sum of $2,335,752.50 was paid to the government as payable estate duty and interest although the principal value of the estate of the Deceased was assessed at $457,685.24 only.

5. The wife passed away on 15 February 2005.

6. On 11 April 2005, an ex-parte application under HCEA 38/2005 was filed with this Court to ask an order to appoint one Ms. Au Yang, Joan M.C. (“the applicant”) as an administratrix for letters of administration with Will annexed to the estate of the Deceased.

7. Two requisitions were raised by the officer on 23 June 2005 regarding the position of the wife:

“ 1. Since the deceased was survived by CHAN WEI CHEUNG [the wife], please provide authority that the applicant is in a position to make this application.

2. Subject to Req. No. 1, please advice and confirm whether a grant to the estate of CHAN WEI CHEUNG has been obtained; if yes, please file a photocopy thereof.”

8. On 21 September 2005, the solicitors for the applicant replied that:

“ 1. Since Madam Chan Wei Cheung (“Madam Chan”) did not have any assets subject to probate in Hong Kong, no probate of her estate will be applied for in Hong Kong.  However we are instructed that a Grant of Probate in respect of the Will of Madam Chan has recently been granted to the applicant, Ms. Auyang Joan M.C. and Madam Marilyn Tze Fun Wai in Singapore on 5 September 2005 as the executors of the Will of the Deceased.  In this connection we trust that Ms. Auyang Joan M.C. is in a position to make the present application.

  2. We enclose herewith a copy of the Grant of Probate issued by the Subordinate Courts of the Republic of Singapore for your attention.”

9. The officer replied on 16 November 2005 and viewed that:

“ 3. Chan Wei Cheung who survived the deceased was the residuary legatee and devisee named in the last Will of the deceased and she had assets in Hong Kong which being her interest in the estate of the said deceased under the Will.  The present ex-parte application is misconceived.  The grant of the estate of Chan Wei Cheung should be applied for in Hong Kong and the grantee may then apply for the grant to the estate the deceased in the capacity of legal personal representative of Chan Wei Cheung, the residuary legatee and devisee named in the Will.”

10. The solicitor then decided to resolve the matter by fixing an appointment with me.  Ms. M. Tsang appeared before me on 13 December 2005.

Ruling

11. Now, upon careful considering of the evidence and submissions by Ms. Tsang, I am afraid that I cannot accede to the case of the applicant.  My reasons appear as follows.

Reasons

12. Section 36 PAO allows this Court to select an administrator under certain conditions.  Usually, rules 19 and 21 NCPR govern the priority whereby persons are entitled to the grant when the deceased died testate or intestate respectively.  The applicant may however encounter difficulties in “clearing off” somebody, having prior rights, who are unwilling or unable to take up the task for whatever reasons. In such case, he may resort to section 36 which allows this Court to issue him the grant by-passing others.  The provision states that:

“Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or 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 or of any part of such estate, 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, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

13. Bearing this purpose of section 36 in mind, should I allow the applicant herein to “bypass” others?  I regret to say “no” in the present circumstances.

14. The difficulties of the applicant’s case are multiple.  The fatal point is that, under the present case, she is indeed ranked no. 1 under r 19 NCPR because she can take up the role of the wife in the capacity of her legal personal representative. The applicant need not by-pass others at all.

15. Upon further thought, I am afraid that the applicant is in fact asking me to let her bypass nobody, but the Estate Duty Office.

16. Ms. Tsang at one stage during the appointment submitted that the wife had no estate in Hong Kong and as such, disagreed the 2-steps approach suggested by the officer, i.e. to obtain grant of the wife in Hong Kong first, then the grant of the Deceased in the capacity of the personal representative of the wife’s estate.  It was said that it would cause too much trouble.  After my discussion with Ms. Tsang, she probably conceded that the wife’s estate, at least consisted of her interest in the Deceased’s estate.  However, it is not necessarily the case.  It might be even more.  It really depends on the investigations of the Estate Duty Office.  Further, even assuming that the wife did not leave any other estate in Hong Kong, what about estate duty?  One can still remember the payment of over $2 m estate duty when the Deceased left only $0.4 m estate.

17. Ms. Tsang further tried to persuade me to accept that the Singaporean Court had issued the grant to the applicant as one of the executors in the wife’s Will.  She said that the other grantee might join in the present application if it was necessary.  However, with respect, they do not advance her case much.

18. Quite to the contrary, it makes me feel even more uncomfortable.  The sealing or re-sealing of the Singaporean Grant in Hong Kong can be quick.  In the words of Ms. Tsang, she said that it would take a long time to get through the Estate Duty Office for the estate of the wife, as in the case of the Deceased.  Nonetheless, it is what exactly the legislature asks it to do.  Under no circumstances, I believe that this Court should allow somebody to skip the investigations by the Estate Duty Office of the Inland Revenue Department. In the circumstances, the ex-parte application under section 36 PAO filed herein by the applicant is accordingly declined.