RE JAP KHIE KHIAUW

HCAG 7332/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 7332 OF 2010

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D E C I S I O N

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INTRODUCTION

1.  This is an ex‑parte application asking the court to waive certain requisitions raised.

2.  The Deceased, a widow, died intestate in Indonesia and domiciled in Indonesia.  The Deceased was survived by her five lawful and natural daughters.  The applicant is one of them.

3.  The applicant applies for letters of administration for the Deceased’s estate under rule 29(c) of the Non‑Contentious Probate Rules (Cap 10A) (the “NCPR”) in the capacity of one of the persons entitled to share in the estate of the Deceased by the law of Indonesia.

4.  Rule 29 of the NCPR provides that:

“29.  Where the deceased died domiciled outside Hong Kong, the Registrar may order that a grant do issue –

(a)  to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;

(b)  to the person entitled to administer the estate by the law of the place where the deceased died domiciled;

(c)  if there is no such person as is mentioned in paragraphs (a) and (b) of this rule or if in the opinion of the Registrar the circumstances so require to such person as the Registrar may direct;

... ...”

5.  For the court to issue a letters of administration to the applicant under rule 29(c) of the NCPR, the applicant has to clear off those covered by rule 29(a) and (b) who take priority over the applicant or to show circumstances which require the grant to be issued to the applicant.

6.  In her affirmation filed herein on 26 August 2010 (the “Applicant’s Affirmation”), the applicant confirmed that no grant of representation of the estate of the Deceased had been issued by the court in Indonesia.  She further stated in para 4 of the Applicant’s Affirmation that:

“... No grant of representation of the estate is required for the purpose of administration of the estate of the Deceased by CHAN SUET CHUN (陳雪珍) [ie the Applicant] also known as TJHIN SUET TJEN if the Deceased left property in Indonesia.”

7.  On 5 July 2010, the applicant filed an affirmation of law (the “Affirmation of Law”) affirmed by Mr Stephanus Jonathan (“Mr Stephanus”), an Indonesian lawyer, on 8 June 2010.  In the Affirmation of Law, Mr Stephanus stated that succession by demise under Indonesian law was governed by “Indonesian Burgerlijk Wetboek” (the “IBW”). According to Article 832 of the IBW, the children of the Deceased were beneficially entitled to the estate of the Deceased.

8.  Mr Stephanus further stated in the Affirmation of Law that the children of the Deceased were jointly or severally entitled to apply for a grant of the estate of the Deceased under Indonesian law or were of the same rank to apply for a grant to the estate of the Deceased under Indonesian law.  However, Mr Stephanus did not specify which Article of the IBW had spelt out the aforesaid rights of the children of a deceased.

9.  Mr Stephanus stated in paras 7(k) and 12 of the Affirmation of Law that:

“No grant of representation in respect of the estate of the Deceased in Bandung, Indonesia or any decree or other document equivalent thereto has been issued by the Court in Indonesia as the Deceased left no asset in Indonesia.” (Para 7(k))

“WHEREAS, I am instructed that the Deceased did not own any assets in Indonesia and hence it is not necessary for the beneficiaries of the Deceased to deal with any estate formalities in Indonesia.” (Para 12)

10.  The aforesaid paras 7(k) and 12 of the Affirmation of Law cleared off persons covered by rule 29(a) of the NCPR but not those covered by rule 29(b).

REQUISITIONS AND ANSWERS

11.  On 8 October 2010, the court raised the following requisitions to be answered by the Indonesian lawyer:

(i)   whether it is necessary to obtain a grant of representation in order to administer the Deceased’s estate in Indonesia if she left property there (requisition 3(i));

(ii)  if a grant is not necessary, to show how the estate of a deceased would be administered (requisition 3(ii)).

12.  By a letter dated 26 April 2011, the applicant’s solicitors replied that:

“In our case, there is indeed no asset in Indonesia. We shall be grateful to submit that the scenario in which there is asset in Indonesia is not applicable herein. Will you please understand that further legal opinion will incur extra legal costs to our client.”

13.  The applicant’s solicitors had totally missed the point.  Requisition 3(i) was raised to ascertain whether there was any person covered by rule 29(b) of the NCPR under Indonesian law who would have priority over the applicant to apply for the letters of administration for the Deceased’s estate in Hong Kong.

14.  By a letter dated 18 August 2011, the Probate Officer explained to the applicant’s solicitors that:

“Referring para 7(k) of the affidavit of law filed at (4) [ie the “Affirmation of Law”], it is only stated that, as the Deceased left no asset in Indonesia, so, no grant of representation regarding the estate of the Deceased has been issued in Indonesia. For requisition no. 3, it is concerned that if the Deceased had assets in Indonesia, whether it is necessary to obtain a grant in order to administer the Deceased’s estate, and how to administer his estate.”

15.  To address the applicant’s concern on costs, the Probate Officer proposed that requisition 3 could be answered by letter from the Indonesian lawyer instead of a supplemental affidavit.

16.  In a letter submitted to the court on 14 November 2011 (the “Letter”), Mr Stephanus explained how Inheritance Statement Letter and Citizenship Authentication (which is evidence letter as heir under Indonesian law) was prepared.  Mr Stephanus concluded that according to Article 837 of the IBW, “the heir in Indonesia has the right too upon the deceased’s property in the abroad.”

17.  The Letter only stated who were entitled to inherit the deceased’s overseas estate under Indonesian law but failed to address the concern of this court.  On 22 March 2012, the Probate Officer issued the following requisition to the applicant’s solicitors:

“4. In view of the supplemental legal opinion filed at (8) and (8)1 [ie the Letter], it appears that there is no express answer whether it is necessary to obtain a grant of representation in order to administer a deceased person’s estate in Indonesia. Therefore, please advise on this point. ...”

18.  By a letter dated 26 April 2012, the applicant’s solicitors replied as follows:

“Upon perusing the Affirmation of Law filed on 5^th July 2010, we opine that the Indonesian lawyer did clearly state that an administrator in our present case does not need to obtain a grant in Indonesia for the deceased owns no assets or estates in Indonesia.”

19.  It can be seen that the applicant’s solicitors still failed to address the court’s concern for the applicant to clear off persons covered by rule 29(b) of the NCPR who will take priority over the applicant for grant of letters of administration in respect of the Deceased’s estate.  As the applicant’s solicitors seemed not catching the point on the requisitions previously raised by the court, I issued the following directions to the applicant on 30 July 2012:

“D1.  The letter of the Applicant’s solicitors dated 26 April 2012 referred.

D2.  The Court noted that the Indonesian lawyer stated that an administrator did not need to obtain a grant in Indonesia if the deceased owned no assets in Indonesia.

D3.  The requisition of the Court is whether it is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.

D4.  The requisition of the Court has not been answered. The Court requires the information to determine whether this application shall proceed under rule 29(b) or rule 29(c) of the NCPR.

D5.  Please answer requisition no. 3 raised on 8 October 2010 directly.” (original underline)”

20.  By a letter dated 2 August 2012 (the “2^nd Letter”), Mr Stephanus stated that:

“It is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.”

21.  As Mr Stephanus had not specified the relevant Indonesian legislation which required a grant of representation to be obtained for administration of the Deceased’s estate in Indonesia and his opinion contradicted what had been stated in the Applicant’s Affirmation (see para 6 above), I issued the following directions to the applicant on 1 November 2012:

“D6.  When the Indonesian lawyer referred to grant of representation in his letter dated 2 August 2012 [ie the 2^nd Letter], did he mean the notarized heir statement letter? As such heir statement letter is not issued by the Indonesian Court, it will not be treated as equivalent to a grant issued by the Hong Kong Court.

D7.  Will Article 833 of the Indonesian Burgerlijk Wetboek [ie the IBW] have any bearing on the necessity of grant of representation if the Deceased left property in Indonesia?

D8.  It is noted that para. 4 of the Affirmation of Chan Suet Chun filed herein on 26 August 2010 [ie the Applicant’s Affirmation] stated that: “No grant of representation of the estate is required for the purpose of administration of the estate of the Deceased ... if the Deceased left property in Indonesia.”

D9.  Please clarify the above issue with the Indonesian lawyer to see if it is necessary to amend the said Affirmation of the Applicant.” 

22.  On 18 February 2013, the applicant’s solicitors filed the revised version of the Applicant’s Affirmation reaffirmed on 7 February 2013 (the Applicant’s Revised Affirmation”).  In the Applicant’s Revised Affirmation, the applicant changed para 4 to read as follows:

“...No grant of representation of the estate is required for the purpose of administration of the estate of the Deceased by CHAN SUET CHUN (陳雪珍) [ie the Applicant] also known as TJHIN SUET TJEN if the Deceased did not leave any property in Indonesia.”

23.  The Applicant’s Revised Affirmation still failed to address the concern of this court on clearing off of persons referred to in rule 29(b) of the NCPR. On 18 March 2013, the Probate Officer issued the following requisition to the applicant:

“5.  I refer to your letter dated 8/2/2013 [ie the covering letter for the Applicant’s Revised Affirmation] and the letter of Stephanus Jonathan S.H. [ie the 2^nd Letter]. Please note that every word should carry a meaning, especially a legal term. Please advise Stephanus Jonathan what is a grant in the eye of English law. How is it necessary to obtain a grant of representation from a court in Indonesia generally in order to administer the estate in Indonesia. Please state relevant law if that be the case.” (requisition 5)

24.  The Probate Officer also reminded the applicant to comply with directions D3 and D9.

25.  By a letter dated 19 March 2013, the applicant’s solicitors replied to requisition 5 as follows:

“5.    We shall be much grateful to refer to the supplemental legal opinion filed on 14 November 2011 [ie the Letter] and Mr Stephanus Jonathan had explained the Indonesia law in relation to administer the estate in Indonesia. Hence, it already confirmed direction D3 that it is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.

    Further, according to another supplemental legal opinion filed on 17 August 2012 [ie the 2^nd Letter] that Mr Stephanus Jonathan further confirmed it was necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.  It is also in coherent with direction D3.”

26.  If a grant of representation to administer the Deceased’s estate is required under Indonesian law in the event of the Deceased leaving property in Indonesia, rule 29(b) of the NCPR will be engaged and this court has to ascertain who will be entitled to administer the estate of the Deceased under Indonesian law.  If the applicant is amongst these persons, this application shall proceed under rule 29(b) of the NCPR.  If the applicant is not, she has to clear off these persons who have priority over her for grant of letters of administration in respect of the Deceased’s estate.  Furthermore, the court noted that Mr Stephanus had not specified the relevant Indonesian statutory provisions setting out the requirement for granting of representation as stated in the 2^nd Letter.

27.  On 18 April 2013, the Probate Officer asked the applicant to file supplementary affirmation of law to answer the following further requisition (requisition 6):

“(i)    Whether general law requires to obtain a grant of representation (issued by the court like the system in HK) in order to administer the deceased’s estate under intestacy in his place of domicile;

(ii)   If grant is necessary, please cite the relevant provisions of law that a grant of representation is required in Indonesia;

(iii)  Please file a copy of relevant law with certified translation that a grant is necessary generally in Indonesia.”

28.  On 3 July 2013, the applicant’s solicitors answered requisition 6 as follows:

“6.  We crave leave to refer to paragraphs 8-11 of the legal opinion filed on 26 August 2010 [ie the Affirmation of Law] that:-

        “WHEREAS, succession by demise under Indonesian law is governed by Chapter XII, Book II, Title Assets, Indonesian Burgerlijk Wetboek [ie the IBW].

        WHEREAS, Article 830 of Indonesian Burgerlijk Wetboek states that succession shall only result from demise.

        WHEREAS, Article 832 of Indonesian Burgerlijk Wetboek states that the lawful heirs to the property comprising the inheritance shall be the lawful and blood relatives and surviving spouse, in accordance with the following regulations. In the absence of blood relatives and a surviving spouse, the assets shall devolve upon the State, with the provision that the debts of the estate shall be settled, to the extend [sic] that the value of the asset is sufficient.

        WHEREAS, according to the Article 832 of Indonesian Burgerlijk Wetboek, which is applicable in Indonesia including city of Bandung, the place of domicile of the Deceased, the children of the Deceased are beneficially entitled to the estate of the Deceased.”

        We crave leave to refer to the legal opinion filed on 17 August 2012 [ie the 2^nd Letter] that:-

        “It is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.”

         We crave leave to refer to paragraph 12 of the legal opinion filed on 26 August 2010 [should be 5 July 2010] that:-

        “WHEREAS, I am instructed that the Deceased did not own any assets in Indonesia and hence it is not necessary for the beneficiaries of the Deceased to deal with any estate formalities in Indonesia.”

(i)    In view of the above, it is general law under Indonesian Burgerlijk Wetboek that a grant of representation is required in order to administer the deceased’s estate under intestacy in his place of domicile.

(ii)   In view of the above, the relevant provisions of the laws is Chapter XII, Book II, Title Assets, Indonesian Burgerlijk Wetboek and Articles 830 and 832 of Indonesian Burgerlijk Wetboek.

(iii)  Since the relevant laws were clearly identified in the above, we shall be much grateful if filing of copy of relevant law with certified translation can be dispensed with.”

29.  The Probate Officer disagreed that the above had answered requisition 6.  In their letter dated 21 May 2014, the applicant’s solicitors reiterated their aforesaid stance.  The applicant’s solicitors also raised the concern of costs for obtaining further legal opinion and production of relevant law with certified translation.

30.  According to the Affirmation of Law, Articles 830 and 832 of the IBW only deal with who are entitled to share the estate of the Deceased.  They do not deal with who are entitled to administer the estate of the Deceased.  The applicant’s solicitors had mixed up entitlement to share the estate with entitlement to administer the estate.

31.  On 12 June 2014 the Probate Officer issued the following requisition (requisition 7) to the applicant’s solicitors:

“... Requisition 6 is not complied with. If something is required to be done in order to administer the estate in Indonesia, it shall not be taken to mean a grant of representation is required.

(i)    Please adduce evidence by way of affirmation of foreign lawyer;

(ii)   If the affirmation of law (called the existing legal opinion in your letter [of 21 May 2014]) is relied on, please highlight with reference to relevant “Chapter XII, Book II, Title Assets, Indonesian Burgerlijk Wetboek” that a grant of representation (issued by a law court, NOT any Government Department or a Notary) is required to administer the estate in Indonesia.”

32.  By a letter dated 20 October 2014, the applicant’s solicitors advised the court that they were unable to contact Mr Stephanus despite various efforts made by them by email, phone, letter and fax.  The applicant’s sought waiver for production of reference to relevant “Chapter XII, Book II, Title Assets, Indonesian Burgerlijk Wetboek” on the ground that Mr Stephanus had previously advised that: “It is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia” and that such circumstance was not applicable in this case as the Deceased left no estate in Indonesia.

33.  On 12 December 2014, the Probate Officer issued the following further requisition (requisition 8) to the applicant’s solicitors:

“It is the duty of the solicitor to ensure all the documents and supporting evidence are in order. Please comply with outstanding requisition before further consideration is given. Your attention is drawn to the Guide to Non‑Contentious Probate Practice in respect of the duty of the Applicant and their legal advisor.”

34.  The applicant did not reply further to the court’s requisitions.

THIS APPLICATION AND THE APPLICANT’S CASE

35.  On 13 May 2016, the applicant’s solicitors issued a Notice of Appointment seeking a hearing before the probate master in respect of requisitions 7 and 8.

36.  The hearing took place before me on 23 May and 11 July 2016.  The applicant’s case was that the only asset in the estate of the Deceased was the Deceased’s entitlement to the estate of the Deceased’s son (the “Son”) who predeceased the Deceased domiciled in Hong Kong.  The estate of the Son consisted of three bank accounts in Hong Kong with a total credit balance of about $518,000.  No grant has been issued in respect of the estate of the Son.  The Son was the younger brother of the applicant.

37.  The applicant applied for letters of administration in respect of the estate of the Son but was told that before the applicant might obtain the grant for the estate of the Son, the applicant had to obtain a leading grant in respect of the estate of the Deceased.  Hence, the applicant applied for letters of administration for the Deceased’s estate and the court raised various requisitions as aforesaid including requisitions 7 and 8 which remained outstanding.

38.  Mr Chan representing the applicant referred to the Affirmation of Law and the 2^nd Letter and submitted that the relevant provisions of Indonesian law were Articles 830 and 832 of the IBW.  Mr Chan submitted in his skeleton submissions that:

“Since the relevant provisions of laws applicable to this case has been cited, I shall be much obliged if filing of copy of relevant law with certified translation may be waived.”

39.  Mr Chan referred to para 13 of the Affirmation of Law to submit that Mr Stephanus had provided sufficient information to answer the requisitions raised by the court.  Para 13 of the Affirmation of Law read as follows:

“13.  WHEREAS, according to the laws of Indonesia, the children of the Deceased have priority to apply to the High Court of Hong Kong for a grant to the estate of the Deceased. The children of the Deceased are jointly or severally entitled to apply for a grant to the estate of the Deceased under the laws of Indonesia or same rank to apply for a grant to the estate of the Deceased under the laws of Indonesia.”

40.  However, Mr Stephanus did not refer to any statutory provisions in Indonesian law in support of his aforesaid opinion that the children of the Deceased were entitled to apply for a grant of representation.

41.  After the hearing on 11 July 2016, the applicant’s solicitors submitted to the court on 12 July 2016 extract of the Indonesian Civil Code extracting Chapter XII of the IBW with English translation (not certified).

DISCUSSION

42.  Mr Stephanus in the Affirmation of Law and the 2^nd Letter stated the following matters under Indonesian law:

(1)  it is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia (“Opinion 1”); and

(2)  the children of the Deceased are jointly or severally entitled to apply for a grant of representation under Indonesian law (“Opinion 2”).

43.  According to the extract of the Indonesian Civil Code submitted by the applicant’s solicitors, Articles 830 and 832 of the IBW (which were relied on by the applicant’s solicitors to reply to requisitions 7 and 8) provides that:

“Succession is only result from demise.” (Article 830)

“The lawful heirs to the property comprising the inheritance shall be the lawful and blood relatives and the surviving spouse, in accordance with the following regulations. In the absence of blood relatives and a surviving spouse, the properties is devolve upon the State, with the provision that the debts of the estate shall be settled, to the extent that the value of properties is sufficient.” (Article 832)

44.  It can be seen that Articles 830 and 832 of the IBW only deal with who are entitled to share the estate of the Deceased but not who are entitled to administer the estate of the Deceased.  These Articles do not provide statutory support to Opinion 1 stated in the 2^nd Letter, ie “It is necessary to obtain a grant of representation to administer the Deceased’s estate in Indonesia if the Deceased left property in Indonesia.”

45.  None of the Articles in Chapter XII of the IBW (ie Articles 830 to 873) refers to obtaining grant of representation to administer a deceased’s estate in Indonesia if the deceased left property in Indonesia.  Instead, Article 833 of the IBW has the following provisions:

“The heirs is by law assume possession of the properties, rights and lawsuits of the deceased. In the event of a dispute over who shall be heir, and who shall be authorized to hold title to the property, the judge may order that the properties shall be held by the court’s safekeeping. The judge is order that the State is hold the property, and shall be obligated to seal the estate, and have an estate description drafted, in the form of an acceptance of inheritances stipulated pursuant to the privilege of estate description; failure to do so is render the State liable for compensation of costs, damages and interest,”

46.  As Mr Stephanus had not identified the relevant statutory provisions in Indonesian law to support his Opinion 1 and Opinion 2 and the applicant’s solicitors had not provided copies of the relevant statute to the court,  paras (ii) and (iii) of requisition 6 have not been complied with. 

47.  Article 833 of the IBW suggests that the heirs of a deceased assume possession of the deceased’s properties by operation of law without mentioning that a grant of representation is required.  This is in contrary to Opinion 1 of Mr Stephanus.  In such case, without production of the relevant Indonesian legislation in support of the aforesaid opinion of Mr Stephanus, I am not prepared to accept Opinion 1 and Opinion 2 of Mr Stephanus.

48.  The whole purpose of requisitions 6, 7 and 8 is to ascertain whether there are people come within rule 29(b) of the NCPR under Indonesian law.  If so, whether the applicant is one of these people.  If the applicant is not one of these people covered by rule 29(b) of the NCPR, the applicant has to clear off these people before the court may grant the letters of administration in this case to the applicant.

49.  In the processing of a common form probate, the Probate Registry “has a duty to consider whether the evidence presented by an applicant is sufficient to support a grant to be issued in his favour.  If in doubt, a probate master is duty bound to raise a requisition pursuant to r.5(1) [of the NCPR].” (per Lam J (as he then was) in Re Estate of Cheung Hung [2011] 1 HKLRD 455 at para 23)

50.  Rule 5(1) of the NCPR provides that:

“The Registrar shall not allow any grant to issue until all inquires which he may see fit to make have been answered to his satisfaction.”

51.  In Re Yip Ho & Anor (unrep., HCAG 566/2000 and HCAG 24/2004, 30 June 2004) A Cheung J (as he then was) stated in para 51 of the judgment that:

“In my view, the rule (rule 5(1) [of the Non‑Contentious Probate Rules] is obviously designed to give the Registrar much discretion in raising inquiries relating to an application for grant.  Unless the inquiries can be shown to be wholly extraneous or irrelevant to the purpose, the Registrar must be entitled to raise them, and there must be a corresponding duty on the part of an applicant to answer them “to his [i.e. the Registrar’s] satisfaction”.”

52.  The jurisdiction of the court in this respect is inquisitorial.  This is confirmed by the Court of Appeal in Re Yip Ho (unrep., CACV 227/2004, 9 November 2005) when the Court of Appeal stated in para 15 of its judgment that:

“The probate jurisdiction is inquisitorial. The Registrar is entitled to require the information so that he can decide whether or not to exercise his discretion.”

53.  Without information requested in requisitions 6, 7 and 8, the court cannot be satisfied that the applicant is entitled to grant of the letters of administration in respect of the estate of the Deceased.  I do not agree to waive these outstanding requisitions.

54.  I note the concern of the applicant on costs to obtain further legal opinion.  I am prepared to modify para (i) of requisition 7 to accept a letter from the Indonesian law expert in place of an affirmation of foreign lawyer.

CONCLUSION

55.  Subject to the modification referred to in para 54 above, I direct that the applicant shall reply to requisitions 6, 7 and 8 to the satisfaction of the court before grant of letters of administration may be issued to the applicant in this application.