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HCA001796/1989
1989, No. A1796
IN THE SUPREME COURT OF HONG KONG
PROBATE JURISDICTION
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IN THE ESTATE of NG PUI LIN(吳佩蓮) late of Flat I, 5th Floor, 251-261 Shaukeiwan Road, Hong Kong, Concubine, deceased |
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and
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IN THE MATTER of Rule 62 (1) of the Non-Contentious Probate Rules Cap. 10. |
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Coram: Hon. Liu J. in Chambers
Dates of hearing: 10th July 1989
Date of delivery of judgment: 10th July 1989
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J U D G M E N T
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1. Ng Pui-lin died in December 1988 intestate. Letters of Administration are being applied for to her estate. In the course of that application, requisitions were aide of the applicants by the Registrar. Some of the requisitions are cosmetic, to which there is no real abjection. The main resistance to the requisitions of the Probate Registrar Pies in his proposed exclusion of the kit fat wife as next of kin and his request for certain elaboration.
2. The intestate deceased was a concubine of the male applicant who together with a daughter from the union of her father with the kit fat wife make the instant application for Letters of Administration. They are the deponents to the Oath of Administrators filed herein on the 27th April, 1989.
3. Mr Wong for the applicant has reminded the Court that procedure for the application of Probate or Letters of Administration is today more regulated. Prior to the present Probate and Administration Ordinance in 1971, section 44 of its precedessor admitted practice of our courts which had been thitherto prevailing. S.44 was not reintroduced in the present Probate and Administration Ordinance.
4. Under the present Ordinance, the Probate Registry must be guided by the practice and procedure in force in England and whatever rules and orders made by the Chief Justice pursuant to s 72. The so called old practice of our Probate Registry need not be followed. The forms in use are as provided for in our Non-Contentious Probate Rules.
5. It is further submitted by Mr Wong that our present Rule 2(3) of the Non-Contentious Probate Rules provides less room for interference by Probate Registrar. Rule 2(3) requires forms as prescribed to be "adhered to" but "with such variations or additions as circumstances may require". The English equivalent requires forms to be used "wherever applicable, with such variations as a Registrar may in any particular case direct or approve". In essence, there does not seem to be any significant difference between the two provisions with a similar proviso to cater for a variety of circumstances. This appeal is not only to be prosecuted without the benefit of contra-submissions but this aspect, interesting as it is, cannot be crucial to the matters on which my determination is now being sought. I express no concluded view on it.
6. Guided by the English practice and whatever orders and rules applicable issued by the Chief Justice pursuant to s.72 of our present Probate and Administration Ordinance, the matters under appeal fall to be decided. In Requisition (1)(i), the Probate Registrar seeks information on the marital status of the lady applicant. Mr Wong refers me to p.120 of Tristram & Coote's Probate Practice, 27th edn., which categorically advises that "where a female deponent [in the Oath of Administrators] has an occupation, this should be given. If she has no occupation, she should be decribed as spinster, married woman (or wife of________), widow, or, if divorced, as a single woman or a female sole". The lady applicant has an occupation. She is a trust officer and her marital status need not be furnished. It is difficult to perceive how, in the circumstances of the present application, her marital status could be of relevance.
7. Mr Wong further calls in aid the plain requirement of Rule 65(1) of our Non-Contentious Probate Rules 65. Solicitor is quite adamant that the Oath of Administrators in this non-contentious business has followed the requisite form in our Rules of Supreme Court.
8. Requisition 1(ii) seeks to have the kit fat wife deleted from the list of next of kin. Mr Wong takes exception to the use of the archaic term "next of kin" which, he submits, should be construed liberally, particularly in a non-contentious application for Letters of Administration. Solicitor concedes that the term is susceptible of the meaning referable to persons beneficially entitled to distribution. Mr Wong draws attention to the more extensive dictionary definition of the term "next of kin" and it is contended that in common parlance, it could include persons close to a deceased, such as a spouse or person akin to the status of a spouse. I can readily understand the anxiety of the Probate Registrar that when the term, however, ancient, "next of kin" is used in one of our Ordinances, particularly in an Ordinance which is concerned with probate business, the traditional meaning ascribed to it should be preferred.
9. Mr Wong has intimated that the kit fat wife claims no beneficial interest and is not seeking to participate in the ultimate distribution of the intestate estate. Hence, requisition 1(ii) should be complied with by the deletion of the kit fat wife from the list of the Oath of Administrators.
10. Turning to requisition 1(iii), what is being demanded of the applicants is that the precise relationship between the rest of the next of kin be better particularised. The particulars offered in the Oath of Administrators are more specific than the usual description of "natural and lawful or lawful son or daughter of the deceased". The relationship of the surviving husband with the intestate is clearly given; so is the relationship of her next of kin. Section 2(2)(b) of the Intestates' Estates Ordinance defines "children". Children of the kit fat wife and the deceased concubine have been clearly described in paragraph of the Oath of Administrators. The request made of the applicants by the Probate Registrar does not seem to serve any useful purpose. In my view, the applicants are not obligated to accede to this request.
11. Requisition 1 (iv) & (v), insofar as they aim at cosmetic amendments. Mr Wong takes no point on it. In paragraph 1, the addition of the word "as"; in paragraph 4, the deletion of the words "The said"; in paragraph 5, the deletion of the word "lawful"; in paragraph 12, the deletion of the words "The" and "is" twice over with the substitution thereof by the proposed words in pencil.
12. Prayer 6 of the Oath of Administrators states that the surviving husband is the lawful husband of the kit fat wife and the deceased and was not married to any person other than the kit fat and the deceased. The Probate Registrar asks the following words to be inserted before the words "the deceased", namely "has no other concubine that". I agree with Mr Wong that paragraph 6 is clear enough and the proposed words could take the matter no further. The request for the addition words in paragraph 6 of requisition 1 (iv) need not be complied with:
13. As to Requisition 1 (vi) and (vii), for information as to date of the marriage between the surviving husband and the kit fat wife and the date and place of the union between the surviving husband and the deceased concubine, Mr Wong himself had the priviledge of canvassing the same point before Chief Justice Briggs in Chambers in December 1978. Suffice it to say that in non-contentious business on an application for Letters of Administration, only prima facie evidence need be produced. Mr Wong further refers me to Phipson on Evidence, 13th edn. p.668, para.29 - 03 which is a confirmation of what I have just stated.
14. I could do no better than extending my personal recommendation to those who are constantly involved with non-contentious business in the Probate Registry to take note of the decision of Chief Justice Briggs given on the 6th December 1978 in probate application No. 2003 of 1978.
15. Requisition 1 (vi) & (vii) need not be supplied by the applicants. I rely on the said decision of our former Chief Justice then assisted by Mr Wong himself. I annex a copy of the decision to that decision for easy reference.
16. I turn next to requisition 2 which seeks information in respect to life interests. In paragraph 1 of the Oath of the Administrators, it is stated that minority interest arises without any life interest involved under the intestacy. The Probate Registrar asks of the applicants some authority "that no life interest arises under the intestacy". Mr Wong reminds me that none of the circumstances in the instant application for Letters of Administration suggests the possibility of a life interest accrued to the benefit of any person. Life interest of a concubine or a kit fat in the intestate estate of a interest husband under Tsing law is not at all unknown. Here, it is a matter of devolution of the estate of an intestate concubine. The other next of kin apart from the husband are brought in by Section 2(2)(b), the Intestates' Estates Ordinance. There is no room for the operation of Tsing law. The Schedule to that Ordinance can also have no application. The Probate Registrar has also not elaborated as to how life interest could arise in the circumstances. Mr Wong must be correct that paragraph 11 is sufficient.
17. Lastly, I turn to requsition 3. It requires an affirmation from the kit fat to establish or verify the status of the deceased as the concubine of the surviving husband. All the applicants need produce is prima facie evidence. Even under Tsing law, recognition of the concubine by the kit fat wife is a matter constantly debated. The better authority seems to be that recognition by the head of the family would suffice. This is not an issue that calls for verification in these proceedings. I accept Mr Wong's submission that prima facie evidence is all that is necessary in support of the assertion that the deceased was the concubine of Kwok Kun Wong and no affirmation from the kit fat wife is necessary or warranted in the circumstances.
18. Time therefore be abridged. The decision of the Probate Registrar in the requisitions under consideration is otherwise set aside. Lastly, I further order that on compliance with the cosmetic amendments as indicated and the deletion of the kit fat wife from the list of next of kin, Letters of Administration are to issue to the applicants. The sub-paragraphs in paragraph 1 of the Oath of the Administrators are to be correspondingly re-numbered.
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sd.(B. Liu)
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Judge of the High Court
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Representation:
Mr I. Wong of M/s. Ignatius Wong & Co for the Applicants.
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Application No. 2203 of 1978 (Probate)
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| IN THE SUPREME COURT |
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HIGH COURT
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IN THE ESTATE OF CHENG SUN WAI LIN also known as CHENG SUEN WAI LIN and SHUEN WAI LIN, Widow, deceased. |
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Application by CHENG KWAN LIM, lawful and natural son, for grant of Letters of Administration of the estate of the deceased. |
Coram: Briggs, C.J. in Chambers
Date of judgment: 6 December, 1978.
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D E C I S I O N
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This is an appeal by CHENG Kwan Lim from the order of Mr. Registrar O'Dea upholding certain requisitions made by the Registrar of the Probate Registry. CHENG Kwan Lim applied for the grant of Letters of Administration to the estate of his late mother, CHENG SUN Wai Lin who died intestate.
The point at issue is whether the intestate to which the Letters of Administration apply, was a "concubine" or a "widow". She was, in fact, a concubine, but she was described in the title and in the body of the oath as "widow". This is wrong. Other requisitions ask, in effect, that the appellant prove that the intestate was a concubine in law.
In my view, this is not necessary in non-contentious proceedings such as these. For example, if a son is seeking a grant of Letters of Administration to his father's estate he does not have to produce the marriage certificate of his father and his mother to prove there was a marriage. Nor does he have to prove in his Oath that his mother and father were legally married. The oath made by the Administrator is only prima facie evidence of its contents. If it is proved to be wrong at a later stage the matter can be contested and the grant revoked.
In my view, section 13(2) of the Intestates' Estates Ordinance has no application in the present case.
The appellant objected to the following requisitions of the Registrar to the Probate Registry:-
"No.3(i)- Please amend paragraph 1 to show the date of concubinage entered into by the deceased and her male partner.
No.3(iv)- Please amend the title and paragraph 1 as shown in pencil.
No.7- Please adduce evidence to prove that the concubinage entered into between the deceased and her male partner was accepted by the kit Pat wife of her male partner and members of his family generally.
No.11- The title of all documents should be amended to correspond with paragraph 6 if that is what is required. Paragraph 5 appears irrelevant and should be deleted."
In my view, the appellant need not answer the requisitions numbered 3(i), 7 and the last half of 11. And the appeal is allowed to that extent. However, I think wherever the word "widow" is used in the oath, the word "concubine" should be substituted therefor. This is in the interests of truth.
The solicitor appearing for the appellant has given his undertaking that he will comply with the above and that the oath will be resworn as so amended. When that has been done, I order that the Letters of Administration to the estate of the deceased shall be issued to the appellant.
Costs of this appeal are to be paid out of the estate.
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(Geoffrey Briggs)
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Chief Justice.
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Representation:
I. Wong of (R. Wong & Co.) for appellant.
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