RE KOO PAULINE VERONICA

HCAG 6613/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 6613 OF 2005

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D E C I S I O N

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Application

1. This is the second application on the new Non-Contentious Probate List.  Mr. L. Lok, solicitor acting for the applicant, does not agree with requisition no. 7 and asks me to tick it off.

“7.  Please amend para. 1 of (1) to show the names of executors exactly in accordance with clause 2 of the Will (extra names have yet be deleted)

(see reqs. nos 1(iii) of my letter dated 12.8.2005 & req. no. 5 of my letter dated 24.9.2005)”

Background

2. The Deceased died testate on 1 May 2003.  By paragraph 2 of her Will dated 9 July 1996, she appointed two executors and trustees.

“I APPOINT my God-daughter SHUM TAI KAWN, CHRISTINE (沈大群) and my son PATRICK KOO (古萬祥) to be the joint EXECUTORS And TRUSTEES of this my Will (and they and the executor or executors or trustee or trustees for the time being hereof are hereinafter called “my Trustees”).”

3. The executors filed their affidavit (“the Affidavit”) with the Registry on 13 July 2005.  There had been some requisitions raised on the Affidavit and it was amended and re-filed on both 19 August 2005 and 9 November 2005.

4. Now, after the amendments, paragraph 1 of the Affidavit reads as follows:

“1.  The above-named and described deceased …… having made and executed her last Will and Testament dated 9 July 1996 whereof she appointed us, SHUM TAI KAWN, CHRISTINE (沈大群) and KOO MAN CHEONG, PATRICK LOUIS (古萬祥) also known as PATRICK KOO (古萬祥) (in the Will called PATRICK KOO (古萬祥)) and SHUM TAI KAWN, CHRISTINE (沈大群), as the joint executors thereof ……”

5. No doubt, one will immediately note that the name of “SHUM TAI KAWN, CHRISTINE (沈大群)” appears twice and the latter should be deleted.  Mr. Lok conceded on this.

The Requisition

6. Nonetheless, the officer asked for more.  Requisition no. 7 required that the other executor Mr. Koo should be described exactly as appearing on the Will, i.e. “PATRICK KOO (古萬祥)” only.

7. It is said that paragraph 1 of the Specified Form asks for a “cut and paste” exercise only.  Mr. Lok should have simply recited the appointment as per the Will.  The description of Mr. Koo in the form of “… (in the Will called …)” is only to be stated in the originating paragraph of the Affidavit. 

The Ruling

8. Having carefully considered the matter, I have come to the conclusion that requisition 7 is to be ticked off.  My reasons appear below.

9. The Specified Forms shall be substantially complied with (In the estate of Yip Ho, Judgment dated 9 November 2005 in CACV 227/2004).  Has Mr. Lok done so?

10. In my view, the court’s concern really boils down to the fact that the description of the executor in the grant shall correspond with that in his identification document.  The grant is to be issued accordingly or that, the executor will face difficulties when he will administer the estate because people might have doubt as to his identity.  If the testator misspelt or otherwise incorrectly described the executor in the Will, it shall be made known to the court by affidavit, and thereafter, correctly stated in the grant.

11. Tristram and Coote’s Probate Practice, 29th Edition, at page 130 provides us with the following useful guidance:

“Name of deponent

4.91      Care should be taken to ascertain, and include in the oath, the true full name of the deponent, whether or not this is correctly stated in the will.

4.92      If the name of an executor or executrix is misspelt or imperfectly or incompletely stated in the will, the words ‘in the will called … (as in will)’ should be added to his or her correct name.

4.93      Where the discrepancy is very slight to further evidence is usually required—e.g. when the two names are identical in sound, as ‘Bailey’ and ‘Bayley’; or, if ‘George Smithson’ is appointed and his full name is ‘George William Smithson’.  In such a case it must be sworn in the oath ‘George William Smithson, in the will called George Smithson’.”

12. By reading the description of Mr. Koo under the existing paragraph 1, I do not consider that it will lead to any misunderstanding.  It is Mr. Koo being one of the executors, in the Will called PATRICK KOO (古萬祥) but in his ID Card, KOO MAN CHEONG, PATRICK LOUIS (古萬祥) and commonly known as PATRICK KOO.  So be it.

13. I agree that a simple recap of the description as per the Will in paragraph 1 suffices.  However, I am not going to insist that it is the only way.  In my eyes, the approach adopted by Mr. Lok is substantially the same.  In the end, Mr. Koo will be correctly described in the grant to be issued.