WAN PEGGY YUK PING v. WAN LAY PING YVONNE

HCMP 250/2025

[2026] HKCFI 2028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 250 OF 2025

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BETWEEN

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JUDGMENT

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Introduction

1.  Ms Peggy Wan (“Peggy”) commenced these proceedings against her elder sister, Ms Yvonne Wan (“Yvonne”) pursuant to sections 33 and 36 of the Probate and Administration Ordinance, Cap 10 (“PAO”) by an Originating Summons dated 14 February 2025 (“OS”). The dispute concerns the estate of their late mother Madam Wan (“the Estate”).

2.  Madam Wan passed away on 17 March 2021 with her last will dated 25 June 2014 (“the Will”). In the Will, Yvonne is named the sole executrix while Peggy is named the sole executrix substitute.

3.  By the OS, Peggy applies principally for the following orders:

(a) An order for a grant of administration ad colligenda bona appointing her to preserve the assets of the Estate until a full grant;

(b) An order that Yvonne’s grant of probate application under HCAG 21037/2022 be refused;

(c) An order that Yvonne be removed as Executrix of the Estate and replaced by Peggy as the Administrator of the Estate pursuant to section 33 of PAO; and

(d) Alternatively, an order to pass over Yvonne (or whoever is entitled to the relevant grant) as the Executrix of the Estate in the interests of due and proper administration of the Estate and instead appoint Peggy as the administrator of the Estate pursuant to section 36 of the PAO.

4.  The application of Peggy is supported by her affirmation dated 14 February 2025 and the 2^nd Affirmation of Leung Tiffany Hoi Ying dated 29 August 2025. Ms Leung is a solicitor of Messrs Hugill & Ip (“HIP”) acting for Peggy in these proceedings.

5.  Yvonne has not filed any affirmation evidence despite my directions. The substantive hearing of the OS took place in her absence. Mr Pang appears for Peggy.

Undisputed background facts

6.  The evidence of Peggy is not contradicted by any contrary evidence. Absent any inherent improbability, there is no reason why I should not accept her evidence in its entirety.

7.  The background facts can be outlined as follows.

8.  Before her death, Madam Wan was domiciled in Ontario, Canada. She had 4 daughters and one son. One of her daughters, Connie Wong, predeceased Madam Wan. The other three daughters are Yvonne, Peggy and Vonnie Au. Ricky Wan is her son.

9.  According to the Will, the distribution of the Estate is as follows. First, Ricky is bequeathed 10/100 of the shares and 30/100 is to be vested in Peggy. Yvonne is bequeathed the remaining 60/100 of the shares. Madam Wan did not bequeath anything to Vonnie.

10.  The Estate comprises only a landed property known as 3/F of No 67 Ma Tau Chung Road and the Balcony thereof, Perfect Unity Court, Nos 63-69 Ma Tau Chung Road, Kowloon, Hong Kong (“the Property”). Madam Wan was the sole registered owner of the Property.

11.  The Property had long been the residence of Peggy, Yvonne and Madam Wan before all of them emigrated to Canada in the late 1980s. It has thereafter been left vacant most of the time and occasionally they might occupy the same when they came back on holidays.

12.  Only Yvonne keeps the key to the Property and Peggy had to ask Yvonne for the key whenever she needed it.

13.  In or about 2020 or 2021, the Urban Renewal Authority of the Lands Department (“URA”) sent to Madam Wan a freezing survey to investigate the occupation status of the Property and the household information for the purpose of the resumption of the Property.

14.  In reply, Peggy and Yvonne informed the URA that they were the occupiers.

15.  On or about 24 September 2022, the Government of the Hong Kong Special Administrative Region (“the HKSAR Government”) served a copy of resumption notice (“the Notice”) under section 4 of the Lands Resumption Ordinance, Cap 124 (“the LRO”) on Madam Wan.

16.  Upon service of the Notice, the Property was resumed and reverted to the HKSAR Government. However, Madam Wan was unable to deliver vacant possession of the Property to the HKSAR Government.

17.  The HKSAR Government offered Madam Wan a sum of HK$9,955,263.00 (less the land premium of HK$2,460,000) (“the Offer”), which was made up of:

(a) HK$8,637,000.00 being the value of the Property free from any alienation restrictions; and

(b) HK$3,778,263.00 being the Supplementary Allowance at 50% of full Home Purchase Allowance as a supplementary to the open market of the Property.

18.  Yvonne, for unknown reason, did not reply to the URA to accept the Offer.

19.  The HKSAR Government commenced legal proceedings against Madam Wan, Yvonne and Peggy in the District Court under DCCJ 5167/2022 (“the DCCJ Action”) for, among other things, delivery of vacant possession of the Property and payment of mesne profits of the Property from 25 September 2022 until delivery of vacant possession of the Property. Madam Wan, Yvonne and Peggy are the 1^st, 2^nd and 3^rd defendants respectively in the DCCJ Action.

20.  On or about 17 January 2023, Peggy lodged an acknowledgement of service indicating her intention not to defend the DCCJ Action.

21.  On or about 10 February 2025, HIP on behalf of Peggy made enquiries with the solicitors acting for the HKSAR Government about the DCCJ Action and were advised that judgment had been entered against her.

22.  On 3 March 2025, HIP received a letter from the URA informing them that Yvonne had vacated the Property on 27 February 2023 and that a sum was offered to the Estate (“the Sum”).

23.  On the other hand, ever since the passing of Madam Wan, Peggy has asked Yvonne to apply for grant of probate of the Will in Ontario, Canada and to produce the original of the Will to the Superior Court of Justice, Ontario, Canada. Yvonne has not complied with her requests.

24.  On 19 October 2022, Peggy, being the named sole executrix and trustee substitute in the Will, instituted a legal action in the Ontario Court against Yvonne (“the Ontario Action”) for, among other things, an order that she be appointed the Estate Trustee of Madam Wan with the Will in place of Yvonne.

25.  By the judgment of Madam Justice Gilmore in the Ontario Court dated 21 December 2022 (“the Ontario Judgment”), the Will was proved in solemn form and subject to the filing of the appropriate documents with the Ontario Court, Peggy would be issued a Certificate of Appointment of Estate Trustee with a Will (“the Certificate”) forthwith on an expedited basis.

26.  Eventually, on 22 March 2023, Peggy was granted a “Small Estate Certificate” by the Ontario Court pursuant to the Ontario Judgment (“the Ontario Grant”).

27.  Lastly, on 11 November 2022, Peggy entered a caveat (HCCA 006148/2022) at the Probate Registry to make sure that she would be alert to any application for grant of probate to the Estate in Hong Kong. The caveat expired on 11 May 2023. Peggy made no further entry of caveat because of the Ontario Grant and her intended grant of probate application in Hong Kong.

28.  On 4 August 2023, in the course of her application of the grant of probate, Peggy was informed of Yvonne’s application made on 1 December 2022 (“Yvonne’s Probate Application”) in the capacity of the sole executrix named in the Will.

29.  Due to the co-existence of the two applications for the grant of probate to the Estate, no grant could be issued until either one of them is refused or withdrawn.

30.  Ricky has given his written consent to Peggy’s application.

31.  By an order of Master Jack Wong dated 26 March 2025, Peggy was granted leave to issue a concurrent originating summons in this action and to serve a copy of the same on Yvonne in Canada.

32.  All of the foregoing facts are evidenced by contemporaneous documents.

Applicable legal principles

33.  Section 33(3) of the PAO provides,

“(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.”

34.  Section 36 of the PAO provides,

“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.”

35.  Mr Pang refers to Re Estate of Lo Chi Chong (Deceased) [2025] 1 HKLRD 255 in which Herbert Au Yeung J helpfully provided the following summary of the general principles at §29:

“1. The words “necessary or convenient” in section 36 of the Ordinance give the judge a broad discretion, to be exercised in the best interests of the estate;

2. What constitute the circumstances to engage the court’s discretion to pass over the executor under the “necessity or convenience” ground must depend on the particular facts of the case before the court. It is a fact-sensitive question to be determined essentially on the actual circumstances of the case. The court will approach the evidence objectively and with a good dose of common sense to see if on the facts of the case the “necessity or convenience” ground is made out;

3. The judge is not called upon to determine the parties’ rights and liabilities, nor is it necessary for him to resolve disputed issues of fact;

4. In the circumstances where the executor/administrator has priority in appointment, the burden rests on the applicant to show that there are special circumstances that make it necessary or convenient to pass him/her over;

5. Friction or hostility between an executor/administrator and a beneficiary alone, without more, is of itself not a good reason for removing the executor/administrator. No corrupt or improper motive is to be imputed against the executor even if mutual hostility, without more, is established. However, if the hostility is grounded on the mode of administration, then it is a factor that cannot be ignored;

6. The expeditious and economical administration of the estate is always one of the objects that the court keeps in mind. Therefore, if by reason of the hostility, the executor/administrator is rendered unfit to perform his/her duties as executor/administrator, he/she may be removed. Such inability to perform his/her duties as executor/administrator may be proved if it can be demonstrated that he/she would, say, by reason of the hostility, (a) administer the estate in a manner not in accordance with the law or (b) obstruct the due administration of the estate. The court may also pass over the executor if the breakdown of relation has caused or has the potential to cause difficulty in the administration of the estate;

7. The overriding consideration is the interest and welfare of the beneficiaries, and the question is what is necessary or required for the due and proper administration of the estate;

8. The Court may also have regard to the size of the estate, nature of the assets, background, education, training and experience of the remaining and substituted personal representative;

9. It is not every mistake or neglect of duty, or inaccuracy or misconduct, which will induce a court to remove a personal representative and, a fortiori, to pass over a potential one. The acts or omission must be: “such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity”; but on the other hand, it is not necessary to establish specific wrongdoing, misconduct or fault for the purpose of passing over/removal, but they are relevant considerations if established;

10. The Court must always be very cautious and sparing in the exercise of the power to remove an executor or administrator;

11. When deciding on the identity of the administrator, the Court would usually give preference to the candidate with the support of the majority of the beneficiaries. This consideration usually arises in the context of a dispute between persons entitled to administration to the same degree under the Non-Contentious Probate Rules. Hence, the starting point must be the general practice that the choice of the majority would be preferred by the Court.”

36.  Guided by these principles, I now assess the merit of Peggy’s application in light of the submissions of Mr Pang.

Discussion

37.  At the outset, I have to point out that Yvonne has indicated her opposition to the present application by way of correspondence including emails. She ignored my directions and failed to put in affirmation evidence properly. Worse still, Yvonne sent me long letters containing wholly irrelevant allegations.

38.  Mr Pang adequately summarises the allegations of Yvonne made in her correspondence as follows:

(a) Peggy should not be allowed to be executrix of the Estate as she allegedly was a medical marijuana user with late sleeping habits;

(b) She is the sole personal representative and no one can interfere with her administration of the Estate pursuant to the Will;

(c) HIP should not represent persons with mental issues;

(d) She has emailed the Secretary for Justice, the Hong Kong Health Check and Medical Diagnostics Group, the URA and other relevant departments regarding Peggy’s medicinal use; and

(e) Peggy has requested the HKSAR Government for the sale of the Property.

39.  It is plain to me that all of her allegations are baseless and irrelevant. The incoherence of the contents of her emails and letters indeed causes me serious concern about her mental well-being.

40.  Mr Pang explains the basis of the application of Peggy in the following terms:

(a) Yvonne has done nothing to administer the Estate since the death of Madam Wan in March 2021;

(b) Yvonne puts herself in a position of conflict by using the assets of the Estate to her own personal benefit. In doing so, the Estate is put in jeopardy too;

(c) The conduct of Yvonne resulted in the grant of the Ontario Judgment; and

(d) There is an apparent animosity or prejudice held by Yvonne against Peggy and this renders her unfit to administer the Estate.

41.  I have gone through the affirmation of Peggy to look for evidence in support of Mr Pang’s submissions on the issue of delay.

42.  I do not accept that Yvonne has failed to apply for a grant of probate upon the death of Madam Wan. She did so by Yvonne’s Probate Application.

43.  I cannot see the relevance of the alleged failure of Yvonne to attend a video-conference hearing in the Ontario Action. Peggy did not even complain about this in her affirmation.

44.  Nor can I see how the failure of Yvonne to take part in these proceedings can reflect badly on her suitability to be the executrix of the Estate.

45.  I am not satisfied by evidence that Yvonne has ever used any assets of the Estate including the Property and the Sum to her own personal benefit. Peggy did not make such a complaint.

46.  However, I find the complaints about Yvonne’s dilatory approach in the administration of the Estate, her refusal to provide the original copy of the Will to Peggy and Ricky and her failure to deal with the reasonable demands of the URA including delivery of vacant possession resulting in the DCCJ Action to be valid and were borne out by evidence.

47.  In the first place, there is no evidence of any administration of the Estate despite the long lapse of time. Yvonne has not provided any explanation about this prolonged period of inaction. The onus is on her to show a valid reason for delay of more than the executor year: Tsang Wing Kwai v Tsang Wing Fai [2018] HKCFI 1060 at §25.

48.  Further, I accept that the DCCJ Action was caused by Yvonne’s failure to deal with the resumption issue properly and that it can have a significant impact on the Estate.

49.  To begin with, Yvonne should have accepted the Offer and given vacant possession of the Property to the URA promptly. Now, due to the delay, the URA may be entitled to mesne profits for the period from 25 September 2022 to 27 February 2023 plus interest thereon. It is unknown as to the size of the Sum as well and logically it would be less than the Offer.

50.  It is also unknown as to whether the DCCJ Action has been concluded completely with no further enforcement action pending.

51.  The Estate has been depleted and badly needs administration by another person now.

52.  From the groundless and somewhat bizarre allegations now made by Yvonne against Peggy, it is very doubtful whether she is a fit and proper person to administer the Estate in accordance with the Will as well.

53.  In the premises, I am satisfied that Yvonne should be removed as the executrix of the Estate for the due and proper administration of the Estate and the interests of the beneficiaries including Peggy pursuant to section 33(3) of the PAO.

54.  Further, I agree with Mr Pang that it is necessary and convenient to appoint Peggy to be the administrator of the Estate pursuant to section 36 for the following reasons.

55.  First and foremost, Peggy is the named sole executrix and trustee of the Estate. Madam Wan trusted her.

56.  Second, Peggy obtained the Ontario Grant. The Ontario Court trusted her too.

57.  Third, Ricky trusts Peggy and he has given his approval of the present application.

58.  Therefore, I am convinced that Peggy should be appointed.

59.  Peggy further asks for an order that the requirement of a guarantee under section 38 of the PAO be dispensed with.

60.  Peggy deposed to the fact that there are no known creditors or liabilities save the HKSAR Government due to the judgment in the DCCJ Action, that there are no beneficiaries in need of such protect except Yvonne and the fact that the Estate is simple and small. She further undertakes to distribute the Estate to Ricky, Yvonne and herself as soon as possible.

61.  In the circumstance, I am convinced that I should exercise my discretion to dispense with the requirement of a guarantee.

Conclusion and order

62.  For the reasons given, I accede to the application of Peggy by the OS in the main. Mr Pang has provided a draft order for my approval. After perusal the draft order, I make an order in the following terms:

(a) Yvonne’s Probate Application (HCAG 21037/2022) be dismissed.

(b) The grant of letters of administration (with will annexed) be issued to Peggy as administrator of the estate of Madam Wan subject to the filing of the requisite papers and answering of the requisitions by the Probate Registry;

(c) Peggy do have leave to inspect, withdraw and use all documents lodged in grant application nos HCAG 21037/2022 and HCAG 015533/23 for the purpose of applying for the grant of representation of the Estate;

(d) An Order that Yvonne do within 14 days deliver to Peggy a true and perfect inventory and account of the Estate as verified on affidavit;

(e) An Order that Yvonne do deliver up to Peggy all assets and monies in her hands representing the assets and monies of the Estate (if any);

(f) An Order that Yvonne do deliver up to Peggy the original copy of the Will, if the same is in her possession, power and custody;

(g) An order pursuant to Rule 19 of the Non-Contentious Probate Rules (Cap 10A) if appropriate, together with an order that the provision of surety guarantee be dispensed with; and

(h) Liberty to apply.

63.  On the issue of costs, Mr Pang submits that this application is necessitated by Yvonne’s conduct and so she should pay the costs of Peggy on a trustee basis. He also asks for summary assessment of her costs with the statement of costs provided.

64.  It is obvious to this court that Yvonne is not fit to administer the Estate though she is the first choice of the Deceased. This application is necessary and inevitable. However, Yvonne should not have opposed the application.

65.  On this basis, I make an order nisi that Peggy’s costs of and occasioned by this application including the hearing held on 9 September 2025 and all costs reserved to be paid out of the Estate, to be summarily assessed on a trustee basis by this court on paper.

66.  Peggy’s costs of this application incurred after 9 September 2025 should be borne by Yvonne personally to be summary assessed on a trustee basis by this court on paper too.

67.  Yvonne should lodge with this court and serve on Peggy her list of objections within 21 days from the date of this Judgment.

68.  Lastly, I thank Mr Pang for his assistance.