AU KIN KONG KINNY v. AU PUI YUE CANDY (IN HER PERSONAL CAPACITY AS WELL AS IN HER CAPACITY AS THE ADMINISTRATRIX DE BONIS NON OF THE ESTATE OF LEUNG YEE MEE) AND ANOTHER

HCAP 8 & 9/2020
(Heard together)

[2023] HKCFI 540

HCAP 8/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2020

__________________

__________________

__________________

AND

HCAP 9/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 9 OF 2020

__________________

__________________

__________________

(Heard together)

__________________

D E C I S I O N

__________________

Introduction

1.  Before this Court are two related actions - “HCAP 8” and “HCAP 9”. The respective plaintiff (“P”) and defendants (“D1”[1] and “D2”, and together “Ds”) are the same. By 2 summonses both dated 19 July 2022 (“Summons/8” and “Summons/9”, and collectively the “Summonses”), Ds seek the following paragraphs of P’s two Statements of Claim (“SC/8” and “SC/9”) to be struck out:

(a)  §§7-14, 17(a) and 18-36 of SC/8, and §§(1), (3)-(7) and (9)-(11) of the Prayer (the “Impugned Paragraphs/SC8”); and

(b)  §§5-12, 18-19, 24(b) and 25-30 of SC/9, and §§(2) and (4)-(6) of the Prayer (the “Impugned Paragraphs/SC9”, and together with the Impugned Paragraphs/SC8, the “Impugned Paragraphs”).

2.  The basis of the 2 applications is the same, that HCAP 8 and HCAP 9 both being probate actions, this Court has no jurisdiction to deal with matters of administration of the estates concerned, which the Impugned Paragraphs are said to relate to.

3.  Mr Ken To appeared for Ds. Mr Simon KC Lam appeared for P.

Background facts

4.  Au Kwok Tung (“Father” or the “Late Father”) and Leung Yee Mee (“Mother” or the “Late Mother”) were a married couple. They had 3 children, namely P and Ds.

5.  Mother passed away intestate on 3 February 2016. Letters of Administration of her estate (“Mother’s LA”, and “Mother’s Estate”) were granted to Father on 14 April 2016.

6.  According to the Schedule of Assets and Liabilities annexed to Mother’s LA[2], Mother’s Estate comprised, inter alia and in so far as relevant, the following:

(a)  50% interest in Full Happy Development Limited (“Full Happy”);

(b)  50% interest in Fullford Limited (“Fullford”); and

(c)  another shop at To Kwa Wan Road (the “Shop”).

7.  The other 50% interest in Full Happy was owned by Father. Full Happy was the corporate vehicle Father and Mother used for holding a property at No. 263, To Kwa Wan Road.

8.  The position of Fullford was similar. Its other 50% interest was owned by Father. It was the corporate vehicle used by Father and Mother for holding a shop at Ki Lung Street, Kowloon.

9.  Father passed away on 15 December 2018 before completing the administration. Letters of Administration de bonis non of Mother’s Estate were on 2 April 2019 issued to D1 (Mother’s LAdbn”).

10.  The respective 50% interest in Full Happy and Fullford are not in the Schedule of Assets and Liabilities annexed to Mother’s LAdbn[3]. The reason is that they had been transferred by Father to Ds, P says wrongfully, as we shall see.

11.  Father left a will (the “Will”). It is dated 2 June 2016. D1 is the named executrix. Probate of Father’s estate (“Father’s Estate”, and together with Mother’s Estate, the “Estates”) was granted to D1 on 8 March 2019 (“Father’s Probate”).

12.  On 17 March 2020, P started the present actions:

(a)  HCAP 8 relates to Mother’s Estate. Ds are both sued in their personal capacity, with D1 being sued in addition in her capacity as the Administratrix de bonis non of Mother’s Estate;

(b)  HCAP 9 relates to Father’s Estate. Similarly, Ds are both sued in their personal capacity, with D1 being sued in addition in her capacity as the Executrix of Father’s Estate.

13.  Mr Lam at §8 of his written submissions summarizes P’s cases as follows:

“(a) P was wrongly deprived of his due share of interests in Fullford and Full Happy because the Late Father, on 22.11.2018, wrongfully transferred the Late Mother’s half interests in Fullford to D1 (in her personal capacity), and the Late Mother’s half interests in Full Happy to D2. D1, being the administratrix de bonis non of the Late Mother, is under an obligation to rectify such mistakes but has not.

(b) The Shop was purchased from money that belonged solely to the Late Father, who should therefore be the sole beneficial owner thereof. It was wrongly included in the Mother’s LA and the Mother’s LAdbn.

(c) The Late Father in his own hand wrote and signed a letter on 2.6.2016 (‘the Letter’) addressed to P, D1 & D2 by which he, inter alia, bequeathed the Shop to P absolutely. The Letter embodies the testamentary intentions of the Late Father, and constitutes a valid codicil of the Will. Since, by reason of the matters set out in §8(b) above, the Late Father was the sole beneficial owner of the Shop, P in turn has, by virtue of the Letter, become the owner of the entire beneficial interests in the Shop.

(d) Further or alternatively, the Late Father and, following his demise, D1 (in her capacity as the executrix of the estate of the Late Father), were and are estopped from denying that P is the sole beneficial owner of the Shop.

(e) As a result, D1 is liable to account to P for all rents received and to be received by her from the tenant(s) of the Shop.”

14.  P seeks:

(a)  In HCAP 8:

(i)  As against Ds:

(1)  Rectification of Mother’s LA by the removal of the Shop therefrom (§(1) of the Prayer);

(2)  Removal of D1 as the administratrix de bonis non of Mother’s Estate with replacement appointment (§(2) of the Prayer);

(3)  A Declaration that D1 and D2 each holds 1/12 of the shares in Fullford and Full Happy on trust for P (§§(3) and (4) of the Prayer);

(4)  A Declaration that P is the sole beneficial owner of the Shop (§(5) of the Prayer);

(5)  In so far as necessary, D1 as the administratrix de bonis non of Mother’s Estate do convey the Shop to P absolutely (§(6) of the Prayer);

(6)  Alternative to §§(5) and (6), a Declaration that P is entitled to such shares or interest in the Shop as shall be determined (§(7) of the Prayer);

(7)  Costs (§(8) of the Prayer);

(ii)  As against D1:

(1)  An Account in respect of the Shop (§(9) of the Prayer);

(2)  An order for payment after the Account (§(10) of the Prayer);

(3)  Interest (§(11) of the Prayer);

(b)  In HCAP 9, against Ds:

(i)  Rectification of the Will, by the inclusion of the Letter as a codicil (§(1) of the Prayer);

(ii)  Rectification of Father’s Probate, by the inclusion of the Shop (§(2) of the Prayer);

(iii)  Removal of D1 as the executrix of Father’s Estate with replacement appointment (§(3) of the Prayer);

(iv)  A Declaration that P is the sole beneficial owner of the Shop (§(4) of the Prayer);

(v)  In so far as necessary, D1 as the executrix of Father’s Estate do convey the Shop to P absolutely (§(5) of the Prayer);

(vi)  Alternative to §§(4) and (5), a Declaration that P is entitled to such shares or interest in the Shop as shall be determined (§(6) of the Prayer);

(vii)  Costs (§(7) of the Prayer).

15.  On 3 June 2020[4], Ds filed their Defence in both actions (also a Counterclaim in HCAP 8). They dispute P’s claims. In gist:

(a)  Ds say, in relation to the transfer of the shares in Fullford and Full Happy, that Father initiated and procured the transfers in the course of discharging his duties as administrator of Mother’s Estate, and that he believed that he had full capacity to do so in good faith;

(b)  They deny that Father had contributed towards the purchase monies of the Shop. Alternatively, the Shop was a gift by him to Mother. The Shop belonged beneficially to Mother;

(c)  They deny that the Letter constitutes any codicil. Father’s testamentary intention is also disputed.

Parties’ stances on striking out

16.  Mr To’s submissions may be summarized as follows. The Impugned Paragraphs concern variably P’s claims in relation to the Shop (the “Shop Claim”), and the shares in Fullford (the “Fullford Claim”) and Full Happy (the “Full Happy Claim”). They all concern administration of the Estates, but not any probate matters of the same. These being probate actions, this Court has no jurisdiction to entertain them. He relies on a number of authorities, which include Re Berger [1990] Ch 118, at 133E - 134B, Re Estate of Cheung Hung [2011] 1 HKLRD 455 at §§11-12, and Liu Yu Wei v Lee Wai Hing [2007] HKCLRT 513. He submits further that given the want of jurisdiction, any delay in the making of present applications, or any estoppel, would not make any difference, as delay or estoppel could not confer upon this Court any jurisdiction which this Court otherwise does not have.

17.  Hence and in short, in relation to SC/8, Ds seek to strike out its entirety save for the parts concerning the removal of D1 as the administratrix de bonis non of Mother’s Estate (the “Removal Claim/Mother’s Estate”). In relation to SC/9, save those paragraphs pertaining to the Letter (the “Codicil Claim”) and the removal of D1 as the executrix of Father’s Estate (the “Removal Claim/Father’s Estate”, together with the Removal Claim/Mother’s Estate, the “Removal Claims”), Ds seek to strike out the balance, which P says relate to the Shop Claim.

18.  Mr Lam does not dispute that P has raised in SC/8 and SC/9 matters relating to the administration of the Estates. He however points to the balance of the 2 Statement of Claims which Ds do not seek to strike out (i.e. the Removal Claim/Mother’s Estate, the Codicil Claim, and the Removal Claim/Father’s Estate). He submits hence that probate matters are indeed involved, and the proceedings herein were properly commenced under the Probate Action List. It is within the spirit of Order 1A that the other administration matters, which are intricately interwoven with those probate matters, should be dealt with in the same sets of proceedings. The Court dealing with the Probate Action List does have jurisdiction to deal with all the matters.

19.  Mr Lam submits in the alternative that:

(a)  even assuming that the actions were wrongly commenced and continued under Order 76, it is because of Order 2 rule 1 only an irregularity, rather than a nullity;

(b)  Ds have undertaken multiple steps in the actions since commencement. Mr Lam has set those steps out in 2 tables. Those steps were undertaken over a span of nearly 2 and a half years (between March 2020 when the Writs were issued and July 2022 when the Summonses were taken out). They include the filing of Defences (and Counterclaim in HCAP 8), filing of affirmations of testamentary scripts, provision of further and better particulars upon P’s requests, filing and service of Timetabling Questionnaires and Lists of Documents, Ds themselves making requests for further and better particulars, filing and service of Admissions of Facts, making applications to amend pleadings, and the filing of amended pleadings upon leaves having been granted;

(c)  Given the steps which Ds have undertaken since the start of the Actions, the estoppel arising[5], and given further D’s delay in issuing Summonses, the Court ought not in the exercise of its discretion set aside the proceedings. The proceedings ought to be allowed to remain in the Probate Action List. Alternatively, they may be transferred to the HCA List, with all previous steps taken in the proceedings remaining valid.

Distinction between matters of probate and matters of administration

20.  Matters of probate and matters of administration are different:

(a)  According to Order 1 rule 4, “probate action” has the meaning assigned to it by Order 76;

(b)  According to Order 76 rule 1:

“(1) This Order applies to probate causes and matters, and the other provisions of these rules apply to those causes and matters including applications for the rectification of a will subject to the provisions of this Order.

(2) In these rules probate action (遺囑認證訴訟) means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business.

(3) In this Order, will (遺囑) includes a codicil.”

(c)  Order 76 further contains specific requirements and procedure which are applicable only to probate actions (in particular, indorsement on writ before issue (rule 2), lodgment of grant in action for revocation (rule 4), affidavit of testamentary scripts (rule 5), procedure on failure to file acknowledgment of service (rule 6), contents of pleadings (rule 9), and procedure on default of pleadings, on discontinuance and dismissal, and compromise (rules 10, 11 and 12);

(d)  “Administration actions” are regulated by Order 85, rule 1 of which stipulates that:

“In this Order administration action (遺產管理訴訟) means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.”

21.  More specific explanations on the differences between matters of probate and matters of administration were given by Sir Denys Buckley in Re Berger at 133-134, that:

“ The function in English law of a probate court is to ascertain and determine what testamentary paper or papers is or are to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative …

…

Having regard to the existing distribution of business between the various divisions of the High Court, under which contentious probate business is now allocated to the Chancery Division, it is important to distinguish between the jurisdiction of a judge of that division trying a probate action from the jurisdiction of a judge of that division trying an administration action. The probate jurisdiction extends to the function referred to in the preceding paragraph. A judge exercising that jurisdiction can, of course, receive all evidence and entertain all submissions relevant to the performance of that function. He has, however, no duty to construe any of the instruments sought to be proved except so far as to do so may be necessary for the performance of that function. The probate court has no role to play in the administration of the testator's estate in accordance with whatever valid testamentary disposition the testator may have made, nor in determining how far his intended dispositions are valid. Once the identity of the deceased’s testamentary papers has been determined and they have been admitted to probate, all questions of construction arising in the administration of the estate concern only the court of administration.”

22.  Those differences were accepted by Johnson Lam J (as the PJ then was) in Re Estate of Cheung Hung [2011] 1 HKLRD 455, where His Lordship, having referred to inter alia Concha v Concha (1886) LR 11 App Cas 541 and Re Berger[6], observed at §12 that:

“I accept that these cases serve as authorities for the proposition that this Court, in the exercise of its probate jurisdiction (and that includes the Probate Registry), should not decide on matters concerning the administration or distribution of the estate. Those matters should, if necessary, be determined by way of O.85 administration proceedings. I have expressed a similar sentiment in Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115, paras. 86–88.”

23.  The observations of Johnson Lam J in Re Estate of Lioe Ka Khie at §§87 and 88 further explain that the rationales (together with the further justification discussed below, the “Rationales”) behind differentiating matters of probate and matters of administration are to avoid multiplicity of proceedings, and to prevent preempting the decision of the ultimate personal representative, who may or may not be one of the parties before the court when probate matters are still being litigated:

“87. … As held in Re Fawcett [1941] P 85, the probate court does have jurisdiction to decide questions of construction in so far as they affect the admissibility to probate of a testamentary document. However, the general rule is that construction of a will should be decided in an administration action in which the personal representative of the estate is a party, see Lau Hau Chu v Ip Kam [2005] 4 HKLRD 64 at pp.77 - 78. The rationale of the general rule can be found in the judgment of Clough JA in Ip Cheung Kwok v Sin Hua Bank Trustee Ltd [1990] 1 HKLR 497 at p.511G-H:

[Any order made in the absence of the settlor’s] personal representative or a party representing the settlor’s estate would not bind his personal representative when duly constituted. There would therefore be multiplicity of proceedings. … Moreover the personal representative might take a different view …

88. Mr Miu failed to persuade me that this is a case which falls within the exception in Re Fawcett… I do not think it is right to pre-empt the personal representative from considering the matter. It must not be assumed that the personal representative would either be the plaintiff or the first defendants. If someone other than these two parties is appointed as the personal representative, his view may or may not be the same as one of the positions currently taken by them. The personal representative may or may not be able to persuade all the beneficiaries to adopt a consensus to resolve the matter without the need to come before the court. Even if the matter has to be resolved by the court, the costs implications could be quite different from the costs position in the probate action.”

24.  A further rationale behind the distinction concerns the protection on costs which a properly appointed personal representative may seek by way of a Beddoe order pursuant to Order 85 rule 2. Such protection may not be available in a case where matters of probate and matters of administration are included in one single action, so that the constitution of the personal representative has not been determined by then.

25.  In Liu Yu Wei, the deceased’s widow commenced a probate action seeking an order vacating the caveat of the defendant, who was the deceased’s daughter by a previous cohabitee. The defendant filed a defence and counterclaim seeking to be appointed administrator of the deceased’s estate, on the ground inter alia that (i) she had a life interest in a property of the deceased (the Property); (ii) the deceased had also promised to transfer the Property to her and to leave all his assets to her, and that when the deceased was critically ill, he indicated that he would impliedly make of gift of the Property to her; and (iii) a credit sum in the deceased’s bank account was held by the deceased on trust for her. In striking out those grounds, Chu J (as the VP then was), having recited and considered Order 76 rule 1(2), observed and ruled that:

“21. In light of the provisions of O.76 r.1, the issues which a court may deal with in a probate action are confined to who should be granted letters of administration of the estate. As regards issues such as to whom and how the estate should be distributed, they are issues arising from the administration of the estate and should be dealt with by way of an administration action in accordance with O.85 of the Rules of the High Court.

…

22. The defendant’s first three grounds of defence and counterclaim mainly point out that she has a beneficial interest in Lee Kar Kwong’s estate, which means that the estate should not be distributed in accordance with the Intestates’ Estates Ordinance. The issue raised by the defendant clearly involves the distribution and administration of the estate. As regards her allegations that she has a life interest in the Property and that she is the beneficiary of the money in the bank account, these are quite distinct from the question of who should be granted letters of administration and, by themselves, do not affect the plaintiff ’s priority under the Non-Contentious Probate Rules in applying for letters of administration or for appointment as administrator.

23. Turning to the defendant’s allegation that Lee Kar Kwong made a gift of the Property to her … [as] stated above, the issue in the present probate action relates to the application for letters of administration. It is in my view not desirable in the present action to hear and adjudge on the issue of the validity (or otherwise) of the alleged gift at law as that issue goes to the distribution of the estate. However, even assuming the alleged gift is valid at law, this will not serve to deprive the plaintiff of her priority in seeking administration of the estate.”

Inclusion of both matters of probate and matters of administration in SC/8 and SC/9

26.  There can be no dispute that:

(a)  SC/8 and SC/9 are both commenced as probate actions;

(b)  but that matters of administration have been pleaded and raised, in that:

(i)  in respect of SC/8:

(1)  §§7-12, 17(a), 19-36 and Prayer §§(1), (5)-(7) and (9)-(11) concern the Shop Claim; and

(2)  §§13-14, 18 and Prayer §§(3) and (4) concern the Fullford Claim and Full Happy Claim;

(ii)  in relation to SC/9, all the Impugned Paragraphs/SC9 relate to the Shop Claim.

27.  In respect of the Removal Claims;

(a)  The Removal Claim/Mother’s Estate is made on the basis of D1’s alleged failure to rectify or remedy the matters complained under the Shop Claim, the Fullford Claim and the Full Happy Claim. There is no challenge that Mother had in fact died intestate; nor is there otherwise any challenge against the propriety of the grant to D1;

(b)  The above being the case, the Removal Claim/Mother’s Estate is based upon P’s alleged misadministration of Mother’s Estate by D1, which, subject to the case management considerations I will explain below, could in my view be litigated as part of an administration action under Order 85 – see Hong Kong Civil Procedure 2023 Volume 1, §85/2/15;

(c)  In relation to the Removal Claim/Father’s Estate, as the dispute about the status of the Letter as a codicil is engaged, it is in my view a probate matter.

Whether question of jurisdiction

28.  The next question is whether, as contended by Mr To, the Probate Court has no jurisdiction to entertain matters of administration, so that the Impugned Paragraphs have to be struck out.

29.  I have discussed the relevant authorities above. There are clear differences between matters of probate and matters of administration.

30.  As to whether those differences go to question of jurisdiction, my views are as follows:

(a)  I note Johnson Lam J’s observations at §10 of Re Estate of Cheung Hung on Concha, that:

“I only need to cite two passages from these judgments. The first is a succinct summary of the position by Lord Blackburn in Concha v Concha, p.562, after referring to s.23 of the Probate Act 1857 taking away the jurisdiction over suits for distribution from the Court of Probate …”

(b)  I note further Lam J’s description of the observations by Sir Denys Buckley in Re Berger as a modern statement of the distinction in the function of the court exercising its probate jurisdiction and one exercising its administration jurisdiction;

(c)  It appears therefore that the distinction in England between the two types of jurisdictions may be traced back to certain historical legislative background;

(d)  I have not received any submission from counsel comparing the historical legislative frameworks in England and Hong Kong, and cannot form any view as to whether the same historical legislative background equally applies to Hong Kong;

(e)  But with reference to the current legislative framework in Hong Kong, there is clear force in Mr Lam’s submissions, relying upon section 12(2) of the High Court Ordinance Cap 4 and section 3(1) of the Probate and Administration Ordinance Cap 10, that both the probate and administration jurisdictions (together with all the other jurisdictions as set out in section 12 of the High Court Ordinance) are vested in the Court of First Instance, so that the Probate Action List is an administrative but not statutory creation;

(f)  The position is not like for example section 7(2) of the Labour Tribunal Ordinance Cap 25 which provides that no claim within the jurisdiction of the Labour Tribunal shall be actionable in any court in Hong Kong, so that the Labour Tribunal has exclusive jurisdiction over those claims;

(g)  Despite the above, the distinction between probate matters and administration matters, and as a result the need to keep the court’s exercise of its different jurisdictions over those two different matters distinct, remain important:

(i)  As explained by Johnson Lam J in another case, namely Re Estate of Cheng Yung [2011] 2 HKLRD 661 at §18:

“Order 76 r.2 requires a writ in a probate action to be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate. Further, Practice Direction 20.2 requires the writ to be produced to the Probate Master for endorsement before issue. The purpose of these procedural requirements is to ensure proper consideration should be given to the locus and interest of the parties before the commencement of a probate action and the notification of the Probate Registry as to the action. The latter is important because a grant operates in rem and the commencement of a probate action would prevent the Registry from issuing any grant in the meantime. Further, in the context of revocation, the Registry would have to endorse the same on the relevant probate files to avoid further reliance being placed on the revoked grant. I do not see any reason why the plaintiff should be absolved from these requirements.”

(ii)  I repeat the Rationales;

(iii)  Further, as can be seen from and illustrated by Liu Yu Wei, issues and facts relating only to matters of administration can be entirely irrelevant when it comes to resolution of matters of probate, so that facts relevant only to matters of administration can be liable to be struck out in probate actions for reason of irrelevance;

(h)  Hence, when a party takes out a writ following and pursuant to Order 76 and commences a Probate Action, they are invoking the Court of First Instance’s probate jurisdiction. For all the above reasons and the Rationales, and borrowing and repeating the words of Johnson Lam J in Re Estate of Cheung Hung:

“… this Court, in the exercise of its probate jurisdiction (and that includes the Probate Registry), should not decide on matters concerning the administration or distribution of the estate.”

The observations of Chu J in Liu Yu Wei at §21 are to the same effect.

To strike out or to transfer (or otherwise case manage)

31.  In the light of my understanding of the jurisdictional issue as explained above, I do not accept that in a case where administration matters and relief are pleaded and prayed for in a Probate Action, the Court has no option but to strike them out for want of jurisdiction. In my view, whilst the exercise of the jurisdictions should be kept apart, but consistent with the underlying objectives, it is within this Court’s jurisdiction in exercise of its divers case management powers to properly deal with the matters in the interest of justice.

32.  Indeed, in a not dissimilar situation before Johnson Lam J in Re Estate of Cheng Yung, a conversion from an Administration Action to a Probate Action was considered, that such conversion was ultimately not ordered on the facts (but not on jurisdiction reason).

33.  In my view, when deciding whether to order a conversion or to strike out, valid considerations include:

(a)  bearing in mind the Rationales and the requirements under Order 76, whether the case is a plain and obvious one for striking out, or whether those Rationales and requirements can still be upheld and met by a conversion with necessary case management directions being given;

(b)  whether it is a case of conversion from an Administration Action to a Probate Action, or whether it is the other way round:

(i)  in ordering an action having started as an Administration Action to a Probate Action, the plaintiff may in effect be absolved from complying with all the requirements set out in Order 76. Given the reasons behind those requirements as explained by Johnson Lam J in Re Estate of Cheng Yung at §18, there may not be good reasons and justification for so doing;

(ii)  however, such considerations do not apply in a conversion from a Probate Action to an Administration Action, particular when the Order 76 requirements have been fulfilled;

(c)  whether there has been any delay in taking out the application, and if so, the reasons therefor; and

(d)  the steps that have been undertaken since commencement, and whether substantial costs and time would be wasted (or saved) depending on what orders to make.

34.  I bear in mind those Rationales and the requirements under Order 76. In my view, they can equally be upheld and met in the present cases by ordering a conversion with necessary directions. I will explain further when I deal with the directions below.

35.  In the present cases, any conversion will be one from Probate Actions to Administration Actions. As Mr Lam submitted in the course of the hearing, the procedural requirements set down in Order 76 have been met, affirmations of testamentary scripts filed, and extensive pleadings with further and better particulars filed and served. There is no question of Ds being absolved from complying with Order 76.

36.  There has been substantial delay in taking out the Summonses – more than 2 years after commencement of the actions. There is no good reason for the delay. In the course of the hearing, when clarification was sought from Mr To, the only reason given was change of legal representatives. That is in my view not a valid reason for the delay.

37.  As I have set out above, from the time when the actions were commenced till the taking out of the Summonses, multiple and substantial steps have been undertaken by both P and Ds. Substantial wastage in time and costs would result if the Impugned Paragraphs were to be struck out.

38.  And there is no issue of any difficulty that may arise from those multiple and substantial steps being null and void for want of jurisdictions. As I have discussed above, while the Court, in the exercise of its probate jurisdiction should not decide on matters concerning the administration or distribution of the estate, both jurisdictions are vested in the Court of First Instance. Indeed, it does not appear to be even Mr To’s stance that those prior steps are null and void. Ds are only seeking the Impugned Paragraphs to be struck out. Even if the Summonses were allowed, the balance of both actions will proceed, with the benefit of those prior steps having been undertaken.

39.  In my view, on the facts of this case, with the principle and consideration (that the Court in the exercise of its probate jurisdiction should not decide on matters concerning the administration or distribution of the estate) taken into account, these are not plain or obvious cases for striking out. Quite the contrary, the cases call for case management directions in the interest of justice for expeditious disposition of the same.

The directions to be given – the considerations

40.  I consider HCAP 8 first.

(a)  As I have observed above, the Impugned Paragraphs/SC8 concern the Shop Claim, the Fullford Claim and the Full Happy Claim. They relate to administration matters;

(b)  As I have further observed, the Removal Claim/Mother’s Estate is based upon P’s alleged misadministration of Mother’s Estate by D1, which could in my view be litigated as part of an administration action under Order 85;

(c)  In my view, the entire HCAP 8 may be transferred to the HCA List and be continued as an Administration Action.

41.  In relation to HCAP 9:

(a)  The Codicil Claim is admittedly a probate matter;

(b)  In respect of the Removal Claim/Father’s Estate, as the dispute about the status of the Letter as a codicil is engaged, I have expressed my view that it is probate matter;

(c)  Whilst the Impugned Paragraphs/SC9 (except §§(2) and (4)-(6) of the Prayer) relate to the Shop Claim, they are also relevant to the resolution of the Codicil Claim when considering Father’s testamentary intention. As such and for this reason, I decline to make any order to strike them out. I derive assistance by analogy from the exception in Re Fawcett, as referred to by Johnson Lam J in Re Estate of Lioe Ka Khie.

42.  HCAP 8 and HCAP 9 considered together:

(a)  I need to consider together the further conduct of HCAP 8 and HCAP 9;

(b)  There are substantial overlaps between the 2 actions. Comparing SC/8 with SC/9, one notes that:

(i)  nearly all the paragraphs in SC/8 relevant to the Shop Claim have been repeated almost verbatim in SC/9;

(ii)  the alleged failure on D1’s part to rectify Mother’s LA and Mother’s LAdbn by removal of the Shop from the Schedules of Assets and Liabilities is relied upon as one basis (together with D1’s alleged failure to rectify or remedy the matters complained under the Fullford Claim and the Full Happy Claim) for D1’s removal under the Removal Claim/Mother’s Estate;

(iii)  to save time and costs, and to prevent any inconsistent ruling, the Removal Claim/Mother’s Estate and the trial of HCAP 9 in respect of §§(2) and (4)-(6) of the Prayer therein should not as a matter of case management be permitted to take place separately in 2 actions;

(iv)  as the administration of Father’s Estate should not take place before the resolution of the Codicil Claim (I repeat the Rationales again), HCAP 8 should therefore also be in the queue, and should not be permitted to be proceeded with out of sequence.

Conclusions and disposition

43.  Having considered all circumstances:

(a)  I refuse Ds’ application to strike out the Impugned Paragraphs;

(b)  The Summonses are accordingly dismissed;

(c)  The entire HCAP 8 be transferred to the HCA List and be continued as an Administration Action;

(d)  All the Impugned Paragraphs/SC9 are not struck out, and shall remain as part of SC/9;

(e)  The trial of HCAP 9 in respect of §§(1) and (3) of the Prayer in SC/9 shall take place first (“HCAP 9 Part 1”);

(f)  Trial of HCAP 8, and the balance of the trial of HCAP 9 in relation to Prayers (2), (4), (5) and (6) of the Prayer in SC/9 (“HCAP 9 Part 2”) shall be heard together in and as one single administration action;

(g)  The trial of HCAP 8 and HCAP 9 Part 2 shall take place not earlier that 3 months after the hand down of judgment of in HCAP 9 Part 1;

(h)  For the above purposes, HCAP 8 and HCAP 9 (Part 1 and Part 2) are to be case-managed together;

(i)  Liberty to apply.

44.  I have considered whether order should be made at this directing that any findings of facts in HCAP 9 Part 1 should be binding in the trial of HCAP 8 and HCAP 9 Part 2. However, my view is that that should be left to the trial court of HCAP 8 and HCAP 9 Part 2 to decide on the same.

45.  I record that in the course of the hearing, I raised with counsel certain case managements similar to those set out above. No consensus was however reached. I record that Mr To submit that the proposed directions did not deal with the costs that have been incurred, and may drive the ultimate personal representative(s) from the driving seat. I have considered those submissions. Costs can be addressed in due cause. The splitting up of the Probate Action and the Administration Action as directed above, and the time gap built in by paragraph 43(g) above in my view adequately addressed the Rationales.

46.  I order and direct accordingly.

Costs

47.  I have dismissed the Summonses.

48.  The perceived need to take out the Summonses was however the mixing of probate matters and administration matters by P, which in my view is not justified given the Rationales, despite Mr Lam’s submissions that they are intricately related.

49.  In the end, the exercise results in the giving of case management directions by this Court, which it is hoped and envisaged will assist in the future conduct of the cases.

50.  In the end, I treat the hearing in effect as one for directions, and make a costs order nisi that half of the costs of the Summonses combined be in the cause of HCAP 9 Part 1, and the other half be in the cause of HCAP 8 and HCAP 9 Part 2. Any application for variation or for further provisions on costs shall be made by letter within 14 days from the date of handdown, upon receipt of which further directions will be handdown.