RE KWAN YING MAN

1994, No.PJA2302

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H E A D N O T E

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AN APPOINTMENT WITH A PROBATE MASTER IN NON-CONTENTIOUS PROBATE MATTER SHOULD NOT BE REFUSED - AN APPEAL TO A JUDGE UNDER RULE 62 OF THE NON-CONTENTIOUS PROBATE RULES CAP.10 LIES FROM A DETERMINATION OF THE PROBATE MASTER.

1994, No.PJA2302

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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D E C I S I O N

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1. This is a non-contentious probate matter. The original application was filed on 14 February 1994. That application was withdrawn on 18 March 1994. The same application was renewned on 21 April 1994.

2. In that application, 14 main requisitions were made. There were sub-paragraphs in some of the requisitions. Apparently, these requisitions emanated from the Probate Registry. In response to those requisitions, by a letter dated 22 September 1994, the applicant's solicitors requested the Probate Registry "to give [them] an appointment with the Probate Master with a view for him to review the unsatisfied parts of the requisitions raised by the assistant registrar," evidently referring to the Chief or Senior Probate Officer.

3. By a letter dated 6 October 1994, the Senior Probate Officer replied in these terms:-

"Your letter of 22nd September 1994 has been placed before the Probate Master with reference to the outstanding Requisitions No.8, 12(i) and 13 for her consideration and direction.

The Probate Master is not prepared to grant the appointment sought and you are asked to comply with the outstanding requisitions."

The matter then came before Liu J. (as he then was) on 1 November 1994 by way of an appeal against "the Registrar's decision" on 1 November 1994. I was informed by Mr Henry Ho, solicitor for the Applicant, that the Applicant only appealed against the decision with regard to the outstanding requisitions. He did not take issue with the refusal to grant the appointment with the Probate Master sought by the solicitors.

4. In that appeal before Liu J., he gave 7 Directions.

5. I set out these directions as follows:

"1. Upon roof of death or contents of the death certificate, requisitions Nos.8 & 13 are or are deemed to have been properly and duly answered and/or complied with;

2. Proof of death may be by way of evidence of someone witnessing the deceased's husband's death or evidence of his funeral by someone who attended it;

3. Proof of contents of the death certificate may be in the form of evidence from some one who had read them coupled with evidence of loss of the original and reasonable enquiries/searches made of its whereabouts;

4. The applicant to amend para.10 of Doc. marked 1(A) by adding the words 'minority or' before the word 'life' in para.10 of his affirmation affirmed on 11/8/94;

5. The applicant to state in para.6 of his said affirmation that he applies as a specific legatee;

6. Upon compliance with paras.4 & 5 hereof, requisitions 5(xii) and 5(xiv) are and are deemed to have been answered and/or complied with;

7. Upon compliance with these above directions, the application be granted by the Probate Registrar unless the Probate Registrar raises thereafter fresh issues on notification thereof to the Applicant and this Court on specific causes/reasons shown."

Paragraph 2 of those Directions was to the effect that proof of death might be established by direct evidence of someone witnessing the deceased husband's death or attending his funeral. Paragraph 3 directed that the Death Certificate might be proved by someone who had read them coupled with evidence of loss of the original and failure to retrieve it.

6. Thereafter, the Applicant filed a further affirmation on 28 November 1994. Paragraph 3 of that affirmation reads as follows:-

"3. The deceased's husband Chu Yau Cheung died at Guanzhou, China on 31st July 1958, at which time I stood next to him when he was dying."

7. By a letter dated 30 November 1994, the Senior Probate Officer raised further requisitions, inter alia:-

"Please:-

(i) .....

(ii) prove the death of the deceased's husband in terms of paragraph 2 or 3 of the said Order - paragraph 3 of 1B [i.e. the aforesaid affirmation] is not sufficient and it is not in accordance with the practice that such evidence should be given by an independent witness who has no interest in the estate."

8. Mr Lo informed me that because of the previous refusal of the Probate Master to grant him an appointment to hear his submissions in respect of those requisitions, it would be futile to renew his request for another appointment. That requisition No.(ii) is therefore now taken to appeal.

9. Unknown to the Applicant's solicitors, before that letter of 30 November 1994 was sent out to the solicitors for the Applicant, that draft letter was placed before Liu J. for his information and direction. For the reasons he gave, Liu J. found this practice unacceptable.

10. In this appeal, it goes without saying that the Probate Registry must be in the charge of the Registrar. The Registrar, under s.2 of the Probate Administration Ordinance, Cap.10 means the Registrar of the Court and any Deputy or Assistant Registrar thereof. The Registrar is obliged to concern himself as to whether requisitions have been properly made and whether answers thereto are sufficient or whether the requisitions are otherwise satisfactorily or sufficiently dealt with. His duties are, as I understand, delegated to a Deputy Registrar in the person of the Probate Master. The Probate Master would exercise all the powers and duties required of the Registrar and these include supervising the running of the Probate Registry.

11. I understand that historically in the past requisitions had regularly been made in the name of the Probate Master. Later on requisitions were raised by and in the name of the Chief/Senior Probate Officer. Such a practice have been maintained up till now.

12. It has been the standing practice that when a solicitor is not satisfied with certain requisitions, an appointment with the Probate Master would be requested. The Probate Master would see the solicitor on appointment (with or without counsel) in order to hear submissions as to why a requisition is maintained. Practice and procedure and questions of law may be canvassed. The Probate Master would decide and his decision is, as I understand it, reduced into writing when the solicitor's submission is rejected. This would then be the "decision of the Registrar" for the purposes of an appeal to the Probate Judge pursuant to Rule 62 of the Non-Contentious Probate Rules, Cap.10. From my personal experience in the Probate Registry, this is the practice and I endorse the same.

13. The decision of the Probate Master in not granting an appointment to see or to hear the solicitor is not in line with the practice. Her decision is also wrong in principle. The requisitions preferred by the Probate Office should not be supported without a hearing. Probate Officers who are very experienced on the administrative side are nonetheless without professional qualifications. When questions of law and practice are involved, it is incumbent for the Probate Master to hear the Applicant or his legal advisers.

14. The decision of the Probate Officer in the Probate Registry could not per se be a decision of the Registrar. By Section 2 of the Ordinance, Registrar means the Deputy Registrar or Assistant Registrar. Probate Master cannot require the Applicant to comply with those requisitions without hearing the Applicant or his legal representatives.

15. In the instant appeal, there would not seem to be any decision made by the Registrar in accordance with the Ordinance. I direct that the Probate Master to hear submissions from the Applicant's solicitors on an appointment.

16. The matter should therefore be remitted to the Probate Master with a direction that he/she shall entertain the Applicant's application in respect of those outstanding requisitions on an appointment. I also make an Order Nisi that costs of this appeal be paid out of the estate of the deceased to be taxed on trustee basis.