LAM SEE MING EMILY v. LAM SEE NGAR MIRANDA

HCMP 252/2021

[2021] HKCFI 3314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 252 OF 2021

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DECISION

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1.  The parties are sisters.  The defendant elder sister has without the knowledge of the plaintiff younger sister applied for and obtained the grant of administration of the estate of their late mother, Lam Choi Bo Ming, deceased (“the Deceased”), on the basis that the Deceased died intestate.  The plaintiff commenced these proceedings for revocation of the grant on the ground that the mother in fact left a will appointing her as the executor.  The defendant opposes, and has filed various affirmations and documents for such purpose.  Some of these documents form the subject matter of the plaintiff’s further striking out application.

Background

2.  The parties are the only children of the Deceased. The Deceased had lived with the plaintiff’s family at their residence in Happy Valley, Hong Kong (“the Property”) since 1990, which was registered in the name of Lung and Lam Company (“the Company”).  At the time of her death, the Deceased held 50% while the plaintiff and her husband each held 25% of the shares of the Company.  The Deceased’s shares in the Company apparently form the bulk of her estate.

3.  On 12 October 2011, the Deceased attended Christopher Li & Co, Solicitors (“CLC”) and executed a will (“the Will”).

4.  In March 2014, the Deceased was diagnosed with acute myeloid leukemia, and had since been hospitalized for treatment from time to time.

5.  In the same year, the Deceased had the plaintiff opened her safe deposit box and collected the items therein.  The items were subsequently distributed by the Deceased to the defendant’s family members.

6.  On 18 January 2015, the Deceased passed away at the age of 79 in the hospital.

7.  The Will named the plaintiff as the executor and the beneficiary of the Deceased’s 50% shares in the Company.  The defendant was the named residuary legatee.

8.  No step was taken by the plaintiff to apply for probate.

9.  On 12 June 2019, unbeknownst to the plaintiff, the defendant took out her application for the grant of administration of the estate of the Deceased on the basis that the Deceased died intestate.  Letters of Administration (No HCAG 9172/2019) were granted on 17 June 2019 (“the Grant”).

10.  In September 2019, the defendant commenced proceedings against the plaintiff and the plaintiff’s husband (HCAP 38/2019). There is dispute as to whether the proceedings in that action were actually served.  The defendant subsequently sought “default judgment”, and the plaintiff and her husband did appear by solicitor at the hearing in November 2019 after becoming aware of the action.  On 7 May 2020, the defendant discontinued the proceedings in HCAP 38/2019 altogether.  Costs of the action were summarily assessed and ordered against the defendant.

These proceedings

11.  On 26 February 2021, the plaintiff commenced the proceedings herein and filed her affirmation in support.  Pursuant to section 33 of the Probate and Administration Ordinance, Cap 10 (“PAO”), the plaintiff seeks revocation of the Grant on the ground that the Deceased did not die intestate but left a will, so that the Grant ought not to have been applied for or granted by the court.

12.  By the originating summons herein, the plaintiff seeks the following relief in relation to the estate of the Deceased:

(1)  That the court may give directions for the purpose of ascertaining whether the defendant would contest the plaintiff’s application for an order under section 33 of the PAO for revocation of the Grant;

(2)  Where the defendant does not contest the application, the following orders:

(a)  that the Grant be lodged with the court and revoked;

(b)  that probate be granted to the plaintiff upon compliance with the requisition which may be raised by the Probate Registry;

(c)  that the defendant holds all the assets and proceeds of the estate of the Deceased in her possession, control and custody on trust for the Deceased’s estate;

(d)  that the assets and properties of the estate of the Deceased be vested in the plaintiff;

(e)  that the defendant do give on oath a full and proper inventory and account of properties in the estate of the Deceased and her dealings with them within 28 days;

(f)  that the defendant do pay to the plaintiff of all sums found due on taking of such account, and for all necessary steps to be taken by the defendant to deliver up the assets and proceeds in her hands representing those of the estate of the Deceased within 28 days thereafter;

(3)  Further or other relief; and costs.

13.  On 29 March 2021, the defendant filed her affirmation together with a document stated to be her defence and a witness statement of Mok Chi Keung (“Mok”), her husband, dated 26 March 2021.

14.  On 14 April 2021, the plaintiff filed her affirmation in reply.

15.  At that stage, one would have expected the notice of appointment for hearing before the court.  Instead, this marked the beginning of the defendant’s filing of documents in these proceedings in a manner that defies reasonable understanding even in the case of a litigant without legal representation.

16.  On 28 April 2021, the defendant filed (i) an affirmation together with a defence together with over 60 appendices; and (ii) an affirmation together with a witness statement of Mok.  The documents were said to be filed in opposition of the plaintiff’s summons filed on 26 April 2021.  There was in fact no such summons.  The plaintiff takes that to be just referring to her application in these proceedings.

17.  On 10 May 2021, the defendant filed (i) an affirmation together with a defence; and (ii) a witness statement of Mok.  Again, they were said to be filed in opposition of the plaintiff’s summons filed on 26 April 2021, which, as mentioned, does not exist.

18.  On the following day, 11 May 2021, the defendant filed a summons to oppose the plaintiff’s application for “grant of letter of administration”.  The defendant filed at the same time (i) her affirmation together with that filed on 28 April 2021 mentioned above; (ii) her affirmation together with that filed on 10 May 2021 mentioned above; (iii) her affirmation together with the witness statement of Mok mentioned above; (iv) another affirmation of hers; (v) another witness statement of Mok.  They were presumably filed in support of her summons (to oppose) filed on 11 May 2021.

19.  Flooded by the above documents from the defendant in these proceedings after the plaintiff’s affirmation in reply on 14 April 2021, the plaintiff enquired with the master about the status of these documents in these proceedings.  The master indicated that this would be for the plaintiff to take issue and to consider if any striking out application would be appropriate.

20.  On 13 May 2021, the plaintiff took out her summons to strike out the documents filed by the defendant on and since 18 April 2021 mentioned above so that the parties may proceed on the basis of their affirmations closed by the plaintiff’s affirmation in reply on 14 April 2021. On the same date, notice of appointment for hearing of these proceedings was filed.

21.  The defendant did not stop though.  On 20 May 2021, the defendant filed yet again her defence and a witness statement of Mok.  On 21 May 2021, the defendant sent to court her letter enclosing various documents.

22.  On 26 May 2021, the defendant’s summons filed on 11 May 2021 (ie to oppose these proceedings) and the plaintiff’s summons filed on 13 May 2021 (ie to strike out) were adjourned for substantive argument at the same time of the present hearing of these proceedings.

23.  On 3 June 2021, the plaintiff filed a summons for amendment of the originating summons.

24.  Two weeks before the present hearing, the defendant resumed her filing exercise.  On 27 August 2021, the defendant filed a summons and an affirmation said to be for leave to rely on the documents she has filed.  On 30 August 2021, the defendant filed another summons and affirmation apparently for similar purpose.  Apparently, the plaintiff was not aware of the latest summons and affirmation filed by the defendant until the present hearing.

The plaintiff’s summons to amend

25.  The originating summons, as set out above, does not cater for the situation where the defendant opposes the plaintiff’s application.  The plaintiff took out the summons on 3 June 2021 seeking to amend the originating summons by adding the alternative ground for the court to grant the relief sought, namely if the court finds that the opposition of the defendant is frivolous and without merits.

26.  In a sense, the plaintiff was driven by how the defendant has conducted these proceedings to apply to introduce this alternative ground of her application.  As discussed below, the court has jurisdiction to summarily determine these proceedings notwithstanding opposition by the defendant.  The amendment sought will not occasion any surprise in terms of the contentions advanced or the evidence relied on.  I would therefore allow the same with costs of the summons in the cause of these proceedings.

The Will

27.  The Will was executed two and half years before the Deceased was diagnosed with her leukemia which necessitated her hospital treatment mentioned above.  She was about 75 years old at that time.

28.  The terms of the Will are simple.  Essentially:

(1)  it revoked all former wills, codicils and testamentary dispositions, and was the last will of the Deceased;

(2)  it appointed the plaintiff as the sole executrix and trustee of the Will;

(3)  it bequeathed all the Deceased’s shares and interests in the Company to the plaintiff absolutely;

(4)  all the residue and remainder of the estate would be held upon trust to sell to pay any debts, funeral and testamentary expenses and estate duty; and

(5)  the residue and remainder of the estate after (4) above were bequeathed to the defendant absolutely.

29.  On its face, the Will was signed by the Deceased and attested by the then solicitor and the legal executive of CLC as well as interpreted by the legal executive.

The principles

30.  Section 33 of the PAO provides that:

“(1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

(2) A probate or administration may be revoked under subsection (1) without being called in if it cannot be called in.

(3) The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled hereto 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.”

31.  A grant may be revoked where it has been obtained upon a false suggestion, whether made ignorantly or fraudulently, which obscures a defect in the title to the grant: see Halsbury’s Laws of Hong Kong (2^nd ed) Vol 51 at §425.650.  Representation that the deceased died intestate when he or she in fact died leaving a will must render the entitlement of the grantee to the grant defective.

32.  It is the duty of the applicant for grant to carry out a diligent search to see if the deceased has made a will.  By diligent search, it does not suffice for the applicant to say that he or she finds no will upon search amongst the belongings of the deceased.  The applicant is duty bound to make all necessary inquiries within his or her power to ensure that the deceased had not made any will.  That includes inquiry with the family members and relatives of the deceased who are reasonably supposed to have information in this respect.  It is only when the applicant could not locate any will of the deceased after such search and enquiry that he or she will be in a position to depose to that effect that the deceased died intestate for the purpose of the application for the grant: see Re the Estate of Yeh Lien Teh (deceased) HCMP 1809/2008 (8 October 2008) at §§5-12.

33.  Where it is sought to revoke a grant on the ground that the deceased in fact left a will upon his or her death and therefore did not die intestate, but the will is disputed, the will must be propounded by proof of (i) its due execution; (ii) the testamentary capacity of the deceased when executing the will; and (iii) the deceased’s knowledge and approval of the terms of the will: see Kwok May Sin Kylie (in her personal capacity and in her capacity as the intended personal representative of the estate of Kwok Mei Lung, Deceased) v Fu Ke An [2020] HKCFI 343 at §§28-31.

34.  Following from the above, a contentious application for the revocation of grant because of dispute in respect of the will should proceed by way of a probate action pursuant to O76 of the RHC.  This however does not prevent a party from commencing the action by way of originating proceedings.  Only that at the hearing of the originating proceedings, the court, if it considers that the matter ought to continue by way of an action, may still give the necessary directions.  In the present case, the plaintiff commenced these originating proceedings on the basis that the stance of the defendant at the time was difficult to ascertain at the time.  Hence the first relief sought.

35.  The court may summarily dispose of the application, if it concludes on the materials before it that the plaintiff is entitled to the relief sought notwithstanding the opposition, for instance when such opposition is clearly frivolous or unmeritorious: see Re Cheng Ki Sang [2009] 4 HKC 14 at §7.  As mentioned, this formed the plaintiff’s basis for the amendment of the originating summons, which this court just allowed.

The defendant’s stance

36.  That the plaintiff would find it difficult at the beginning to discern the exact stance of the defendant in respect of the application to revoke the Grant is understandable.  Even in the defence document exhibited to the defendant’s affirmation filed in March 2021, the defendant emphasized that she had had no intention of applying for the grant and competing with the plaintiff for the role of the administrator/personal representative of the Deceased’s estate if the Will had not been withheld from her.  It was only subsequently when the defendant’s case apparently evolved with the further documents filed without leave of the court since May 2021 that it became increasingly clear that she no longer maintains such stance. She can only be taken to be opposing these proceedings.

37.  As the defendant does oppose in these proceedings, the very first relief sought by the plaintiff in the amended originating summons as set out above is no longer necessary.  The question then is whether the opposition of the defendant is clearly frivolous and unmeritorious and, more importantly for the present purpose, whether this court could reach a conclusion summarily.  If not, directions should be given for this matter to continue by way of action.  Otherwise, this court should grant the relief that the plaintiff establishes to be entitled to.

The defendant’s documents filed without leave

38.  Before turning to their substance, this court must address the issue of the defendant’s manner of lodging documents in these proceedings.

39.  O28, r1A(4) of the RHC provides that the defendant, who has filed his acknowledgement of service of the originating summons, must within 28 days after the service of on him of copies of the plaintiff’s affidavit evidence file and serve his own affidavit evidence.  For the purpose of opposing the proceedings, the defendant who has entered appearance does not have to file a summons.  The summons filed by the defendant in the present proceedings on 11 May 2021 mentioned above is therefore superfluous and unnecessary.

40.  O28, r1A(5) provides that the plaintiff have 14 days after the service of the defendant’s affirmation evidence in opposition to file and serve his affirmation evidence in reply.  R1A(6) further provides that no other affirmation evidence than the above shall be received without leave of the court.  The affirmations and documents of the defendant in the present proceedings, insofar as they were filed for her opposition, after the plaintiff’s affirmation in reply filed on 14 May 2021 shall not be received without leave of the court.

41.  The repetitive filing of affirmations and documents by the defendant is inexplicable by the mere fact that she is unrepresented.  This is amply demonstrated by her doing so on 20 May and 21 May 2021 even after the plaintiff has taken out the striking out summons on 13 May 2021.  The pending summonses were adjourned for substantive argument before this court at the present hearing.  The defendant was present when such order was made by the master.  Nevertheless, the defendant filed further summons and affirmation on 27 August 2021 and did so in repetition on 30 August 2021.

42.  Whilst the two summonses filed by the defendant in August 2021 mentioned above may be understood to be her applications for retrospective leave to allow her to rely on all the documents filed after the plaintiff’s affirmation in reply in April 2021, these summonses were filed together with further affirmations exhibiting documents.  The defendant effectively leaves it to the plaintiff and the court to sort out for themselves whether and, if yes, to what extent the documents exhibited are no more than the same documents lodged by her previous affirmations.  Suffice to say that they are not identical.  The plaintiff and the court are not supposed to be subjected to this kind of abuse by the defendant.  The defendant may only expect her summonses to be dismissed in the circumstances.

The existence and validity of the Will

43.  Even assuming that one puts aside the above consideration in terms of abuse of process, one would readily observe that the contents of the documents lodged by the defendant are prolix and substantially irrelevant to the crucial question in these proceedings, namely whether or not the Grant ought to be revoked on the ground that the Deceased did not die intestate but left a will as a matter of fact.

44.  The original of the Will is available for inspection.  How the Will came about was explained by way of affirmation of the plaintiff and the former partner of CLC who was responsible for its preparation and execution.  According to the plaintiff, the Deceased and the legal executive of CLC were close friends.  The solicitor deposed that the Deceased gave instruction to CLC for preparing the Will, and attended the firm to execute the Will.  The Will was executed after explanation of its content by the legal executive, and attested by both the solicitor and the legal executive.  Importantly, during the process, the plaintiff was not, as she should not be, present.

45.  As set out above, the terms of the Will are simple.  Nothing appealed to the then solicitor that the Deceased might be incapable of understanding and approving the terms of the Will before execution.  According to the plaintiff, the Deceased actually worked as a part-time yoga instructor, and she quit only after the diagnosis of her leukemia in March 2014 which was more than two years after the making of the Will.  All those were not effectively, if at all, contradicted by the defendant.  The circumstances of the execution of the Will were straight forward and not peculiar.

46.  The defendant has not put forward any evidence in a credible way to properly put in issue the existence or validity of the Will.  What the defendant seems to suggest is that first, she did not know the existence of the Will, but somehow questions whether this is the only or the last will of the Deceased; and second, the plaintiff is not suitable to be the executor by reference to her conduct before and after the Deceased’s passing.

47.  According to her affirmation(s), the entire basis for the defendant to make the suggestion that there may be other will of the Deceased is that she has all along been kept in the dark about the existence of the Will.  As mentioned below, this is disputed by the plaintiff, though she admits that the Deceased did not inform the defendant of the making of the Will.  In any event, this assertion hardly suffices for properly putting in issue whether or not the Will existed and was the last will of the Deceased. The defendant’s conjecture of the existence of some other will on the basis of her lack of knowledge about the making of the Will is neither logical nor reasonable.

48.  The defendant’s assertion by her affirmations gradually evolved to become positive suggestion of the existence of some other will specifically providing for 50/50 percentage share of the Deceased’s estate by the parties, and that such will used to exist in the safe deposit box of the Deceased.  It is even asserted that the plaintiff has destroyed such other will when she opened the safe deposit box.

49.  However, the defendant gave instruction to her then solicitors to issue a letter before action dated 22 August 2019 to the plaintiff before the commencement of HCAP 38/2019 mentioned above.  By that letter, the defendant positively asserted that the Deceased died intestate.  The defendant was completely silent about the existence of any will of the Deceased at all.  Nor did she make any mention of any will in the safe deposit box, notwithstanding specific reference to the other content of the box for her some other complaint.  Such serious assertion about the existence and destruction of any will of the Deceased was also nowhere mentioned in the first defence document exhibited by the defendant in March 2021.

50.  Further, if taken as the defendant’s actual belief at the time, her suggestion of the existence of any will at all would have directly contradicted her stance in applying for the grant.  If she had had reason to merely suspect that there existed a will of the Deceased, she would not, as she could not, have deposed to the contrary so as to entitle her to apply for the grant on the basis that the Deceased died without a will.

51.  There is dispute as to whether the plaintiff has revealed to the defendant the existence of the Will after the passing of the Deceased at the hospital.  That said, without even making enquiry with the plaintiff and other family relatives in this respect, the defendant could not be said to have discharged her duty of diligent search to see if the Deceased had made a will, as explained in Re the Estate of Yeh Lien Teh (deceased) (above), before she could justifiably depose to the fact or her belief that the Deceased left no will.  The fact was that the defendant went ahead with her application for the grant in June 2019 in the absence of knowledge of the plaintiff.  The defendant admitted that in her defence document.  Had the plaintiff been aware of such intended move on the part of the defendant, there would have been no reason the plaintiff would hold back her objection on the basis of the very existence of the Will.

52.  The plaintiff argues that the contentions of the defendant do not add up to proper challenge to the existence or validity of the Will for the purpose of her opposition in these proceedings.  This also reflects the irrelevance of her affirmation evidence in this respect.  I agree. In the circumstances, as to whether or not the Grant should be revoked on the ground that the Deceased in fact died leaving the Will, the defendant’s opposition is clearly without merits and frivolous.

Suitability of the plaintiff as executor

53.  The defendant’s affirmations shower the plaintiff with criticism about her conduct.  By that, the defendant essentially contends that the plaintiff is not a suitable person to administer the estate of the Deceased.  At one stage, the defendant proposed that an independent person should be appointed instead.

54.  There are two scenarios: (i) appointing some person other than the one named as executor or entitled as administrator to administer the estate of the deceased; and (ii) removing an executor or administrator who has obtained the grant of probate or administration.

55.  Section 36 of the PAO provides that:

“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 administrator may be limited in such manner as the court thinks fit.”

56.  In the circumstances of the present case, the limb under section 36 that may apply would be whether there are grounds for the court to consider that it is necessary or convenient to appoint some person other than the plaintiff as the executor to administer the estate of the Deceased in accordance with the Will.

57.  Strictly, the defendant has not taken out any formal application for an order of the court to appoint some person other than the plaintiff, notwithstanding her being named in the Will and readiness to act as the executor, to administer the estate of the Deceased.

58.  In any event, the starting point is that a person named as the executor is prima facie the choice of the testator as part of his or her testamentary intention.  The court should be slow to deny giving effect to such express intention unless there are circumstances disentitling the named executor to act as such: see William, Mortimer and Sunnucks, Executors, Administrators and Probate (2018) at §21-05.

59.  As to what circumstances may cause the court to consider that it is necessary or convenient to exercise such power, each case must be decided on its own facts.  One objective that the court would bear in mind is the expeditious and economical administration of the estate of the deceased persons, and the court is also entitled to take into account circumstances other than that of the administration of the estate: see Halsbury’s Laws of Hong Kong (above) at §425.598.

60.  Where an objection is based on a person’s bad character, there must be a nexus between the alleged bad character and his suitability to administer the estate. Trivial and personal complaints are rarely relevant: see for instance Tsao Chi Ching v Tsao Lung Mary [2013] 2 HKLRD 301 at §22.

61.  In connection with the allegations against the plaintiff, the defendant adduced the witness statements of Mok, her husband. There is no reason why Mok’s evidence was not or could not have been adduced by way of his own affirmation just like what the defendant has done.  It is also noted that subsequent to the first statement of Mok exhibited to the defendant’s affirmation filed in March 2021, the statements of Mok exhibited to the defendant’s subsequent affirmations resemble the form and preparation of the defendant’s own affirmations.  The contents of these statements of Mok are no different from hearsay evidence deposed to by the defendant but not the alleged statement maker.

62.  The defendant’s allegations against the plaintiff were expanded far beyond what one discerns from the defence document first produced by the defendant in March 2021.  Even assuming that no issue is taken as to their filing without leave of the court, these affirmations of the defendant, the plaintiff argues, are also liable to be struck out on the grounds of their irrelevance as well as their scandalous and oppressive nature.  If the plaintiff is right, this would constitute a further reason for striking them out or not allowing the defendant to rely on any of these affirmations.

63.  Insofar as what happened prior to the Deceased’s death are concerned, the plaintiff is criticized for fraud on the Deceased for four decades prior to the latter’s death.  The parents are said to have been cursed by the plaintiff.  The Deceased is said to have been blackmailed and all her money stolen by the plaintiff.  The Deceased is said to have been forced to borrow HK$6 million before her death.  The defendant is referring to a mortgage loan in respect of the Property taken out by the Company (which owns the Property) in May 2014. The defendant even blames the plaintiff for the Deceased’s cancer and death. The plaintiff has allegedly bribed all sorts of people.  The defendant even complains about the domestic servants of the plaintiff’s family with which the Deceased has resided for over two decades until her death.  Last, the defendant complains that the terms of the Will are unfair.

64.  It is not difficult to understand why the plaintiff categorizes such criticism as frivolous, scandalous and oppressive. The defendant’s complaint that the Will is unfair sums up the source of her grudge.  She eventually made clear that she wants 25% of all the estate of the Deceased as she claims that this was what the Deceased wished.

65.  What happened after the Deceased’s death may be relatively more relevant.  The defendant criticizes the plaintiff for failing to apply for grant of probate for years.  This the plaintiff admits was regrettable.  She explains that she has consulted the solicitors and the company auditor but was given to appreciate the lack of any specific timing for an application for the grant of probate.  Whilst she does not shy away from the fact that her dealings with the assets of the Deceased’s estate are strictly intermeddling in the absence of grant of probate, she is adamant that she has done nothing out of bad faith.  She also arranged the funeral of the Deceased. It was then believed that things would not become contentious.

66.  The plaintiff admittedly caused the transfer of the Deceased’s shareholdings in the Company to her upon the Deceased’s death. The validity of that aside, the transfer would not have affected the defendant, as she is in any event not entitled under the Will to such shareholdings or the Deceased’s interest in the Property represented by such shares.  Nor could the defendant claim any entitlement under the Will to any other properties of the Company such as money in the bank accounts of the Company.

67.  As mentioned, the defendant complains about the contents of the safe deposit box of the Deceased.  According to the plaintiff, the Deceased instructed her some months before the former passed away that the former wished to distribute the items in the safe deposit box.  The plaintiff, as authorized by the Deceased, opened the box and retrieved the items for the Deceased.  During a subsequent weekend family gathering, the Deceased herself distributed those items among the defendant as well as her husband and daughter before the arrival of the plaintiff’s own family.  The plaintiff subsequently learned from the Deceased that they included certain valuable watches.  No item was given to the plaintiff, her husband or their son.

68.  The defendant admits such occasion of the Deceased’s distribution of the items but denies any knowledge about the items from the safe deposit box.  More importantly, she now suggests that there should be other items in the safe deposit box.  As mentioned above, the defendant’s case evolved to even suggestion that one of the items in the safe deposit box was another will of the Deceased.  As discussed, the contention in respect of the suspected existence of another will is nothing but mere conjecture.  Notwithstanding multiple affirmations, the defendant was never specific about what other items were in the safe deposit box of the Deceased. The fact was that episode of distribution of items from the safe deposit box was initiated by the Deceased during her lifetime.  What the plaintiff did after the passing of her mother, as she admits, was cancelling the safe deposit box.

69.  The dealings with the Deceased’s cash and other properties referred to by the defendant after the Deceased’s death might affect the defendant as the residuary legatee.  Counsel for the plaintiff accepts that an account of them would be, as it has to be, rendered in the course of the plaintiff’s administration of the estate if probate is granted to her.  For the present purpose, it is submitted that the defendant’s complaints either relate to matters that would not affect her interest as residuary legatee under the Will or effectively complaint about the plaintiff “jumping the queue” by dealing with the assets of the estate before obtaining the grant of probate.  To the extent of the latter, the plaintiff no doubt will be held accountable. However, that does not suffice as ground for the court to conclude in the circumstances of this case that it is necessary or convenient to appoint some other person than the plaintiff as the executor to administer the estate of the Deceased in accordance with the Will.  The estate is not of complex composition, and involved only the parties as the beneficiaries.

70.  I agree.  In the circumstances of the present case, the complaints of the defendant in respect of what happened after the death of the Deceased, and to the extent that is factually correct or admitted by the plaintiff, do not point to deviation on the part of the plaintiff from the terms and wish of the Deceased as manifested by the Will.  Even assuming that a formal application by the defendant were before this court for appointing her or some other person than the plaintiff to administer the estate of the Deceased in accordance with the terms of the Will, the court has to ask itself whether it is appropriate exercise of jurisdiction and discretion to make an order that hinder even the very first stage of the estate administration process, namely for the named executor to simply apply for probate.  In my judgment, the conclusion in these circumstances is in the negative.  No doubt in discharge of her duty, the plaintiff has to give a full and accurate account of the assets of the estate of the Deceased and what have become of them.  The plaintiff may also be subject to application for her removal if the requisite grounds surface since the grant of probate to the plaintiff.

Other criticisms

71.  For the present purpose, the defendant considers it fit to also complain about the Deceased’s bankers and the Land Registry for not acceding to her requests for disclosure of information.  Suffice to say that such criticism is irrelevant.

Conclusion and order

72.  In respect of the plaintiff’s summons filed on 13 May 2021, it is ordered that the affirmations filed by the defendant on 28 April 2021, 10 May 2021 and 11 May 2021 (ie by the time of the plaintiff’s summons) be struck out.

73.  In respect of the defendant’s summons filed on 27 August and 30 August 2021 for leave to rely on all her affirmations and documents lodged, the same are dismissed.

74.  In respect of the plaintiff’s summons filed on 3 June 2021 to amend the originating summons, as discussed above, I give an order in terms with costs of the amendment in the cause of these proceedings.

75.  In respect of the originating summons as amended, it is now ordered that:

(1)  the Grant shall be lodged with the court and revoked;

(2)  The defendant do hold on trust for the Deceased’s estate any assets, proceeds or monies of the estate in the possession, control or custody of the defendant as a result of her administration of the estate since the Grant;

(3)  Liberty to the plaintiff to apply for probate in respect of the Deceased’s estate;

(4)  Upon the grant of probate to the plaintiff, the defendant do provide a full and proper account on oath within 28 days of (i) all the assets, proceeds or money of the Deceased’s estate that may be in her possession, control or custody; (ii) the defendant’s dealings therewith, if any; and (iii) upon such account, transfer of such assets or payment of such proceeds or money to the plaintiff as the executor of the Deceased’s estate within 28 days thereafter.

76.  It should be noted that no order is made for the actual grant of probate in respect of the Deceased’s estate to the plaintiff. As the plaintiff acknowledges, this will be a matter of application by her and subject to the compliance with all the requisitions that may be raised by the Probate Registry.

77.  It follows from above that the defendant’s summons to oppose filed on 11 May 2021, albeit superfluous, is dismissed.

78.  For the avoidance of doubt, this court reaches the same conclusion above, even assuming that all the affirmation evidence of the defendant is received and considered.

Costs

79.  Following the above event, I make a nisi order that the defendant in her personal capacity shall pay the plaintiff’s costs of and occasioned by these proceedings, including the above summonses, to be taxed if not agreed.  For the avoidance of doubt, engagement of counsel is certified.  In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order of the court.