RE SIK TANG YUET

HCAG 2993/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 2993 OF 2005

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D E C I S I O N

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Application

1. This is the 7th application before this Court on the Non-Contentious Probate List.  It touches on a common problem faced by the practitioners, namely renunciation of probate.

Background

2. The Deceased died testate on 12 August 2002 leaving a landed property valued at $750,000.  He made a Will on 5 August 1991 appointing his first son to be the sole executor and trustee.  The Deceased further directed his first son to administer the estate, including holding the same upon trust for himself and the second son.  Thereafter, after selling of the landed property and payment of all debts and funeral expenses, the residuary estate is to be shared equally by the two sons.

3. On 4 April 2005, the second son filed the present application for grant.  A “Renunciation of Probate” (“the Renunciation”) signed by the first son on 14 December 2004 was also filed with the Court.  It reads:

“RENUNCIATION OF PROBATE

WHEREAS the abovenamed and described deceased late of the above address died on …… having made and duly executed his last Will and Testament, …… appointed his son, the undersigned CHEUNG HUNG NENG (鄭鴻業), sole executor and trustee (emphasis added)

NOW I, …… I do hereby renounce all my right and title to probate and execution of the said Will and to letters of administration (with the said Will annexed) of the estate of the said deceased.”

4. The application was processed in its usual way.  A series of requisitions has been raised regarding the Renunciation.

5. On 31 May 2005, the officer raised 3 requisitions:

“3. Please provide authority that the deceased did not name any residuary legatee or devisee holding in trust for any person in the Will [see clauses 1 to 3 of the Will].

4. Subject to req. no. 3, please amend (5) by way of re-execution to show the capacity of the renunciant in renouncing his right and title to letters of administration with Will annexed.

5. Please amend (1):-

(i) para.2 – to clarify the correct capacity of Cheung Hung Neng as named in the Will;

(ii) para.2 – to clarify whether the deceased named any residuary legatee or devisee holding in trust in his Will.”

6. The solicitor replied on 9 June 2005.  It was submitted that:

“……

With due respect, we submit that the capacity of Cheung Hung Neng (“the Son”) in terms of the Will filed herein is the trustee who holds the residuary estate for himself and the Applicant although the deceased did not expressly name or appoint the Son as the residuary legatee or devisee holding in trust for any person ……”

7. The matter was later referred to me and I directed on 10 November 2005 that:

“The question is that: whether Cheung Hung Neng should have renounced as per rule 19(i) and (ii) of the N.C.P.R.  As conceded by the solicitor’s letter of 9 June 2005, Cheung Hung Neng did possess these 2 capacities under the subject Will.  The renunciation at (5) and para.3 of (1) should be amended accordingly.”

8. The solicitor disagreed.  To cut short the exchange of views by correspondence, I invited him to fix an appointment with me to discuss the matter further.

9. On 16 December 2005, Mr. K.H. Chan of Messrs. Wong, Hui & Co. appeared before me.  Upon hearing from Mr. Chan, I reserved my decisions to be delivered.  I now do so.

Renunciation and Rule 19 NCPR

10. During my discussion with Mr. Chan, we agreed that “renunciation” is a difficult subject because it required:

(a) an understanding of rule 19 of the Non-Contentious Probate Rules (Cap. 10A) (“NCPR”),

(b) an analysis of the subject Will to identify the capacities of different person(s) thereof (it is noted that one single person often enjoys more than one capacity), and

(c) an application of the analysis to the rule.

11. Rule 19 NCPR reads:

“19.  Order of priority for grant where deceased left a will

The person or persons entitled to a grant of probate or administration with the will annexed shall be determined in accordance with the following order of priority, namely—

(i) the executor;

(ii) any residuary legatee or devisee holding in trust for any other person;

(iii) any residuary legatee or devisee for life;

(iv) any residuary legatee or devisee or, where the residue is not wholly disposed of by the will, any person entitled to share in the residue not so disposed of (including the Official Administrator) or, subject to rule 25(3), the personal representative of any such person:

Provided that where the residue is not in terms wholly disposed of, the Registrar may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject however to rule 37) to any legatee or devisee entitled to, or to a share in, the estate so disposed of, without regard to the persons entitled to share in any residue not disposed by the will;

(v) any specific legatee or devisee or any creditor or, subject to rule 25(3), the personal representative of any such person or, where the estate is not wholly disposed of by the will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion thereto;

(vi) any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.”

12. To apply r19 to our case, it is noted that:

(a) the first son is the executor as per r19(i),

(b) the first son is also the residuary devisee holding in trust for the second son, as per r19(ii),

(c) there is no residuary legatee or devisee for life under r19(iii),

(d) both the first and second son are ultimate residuary devisee under r19(iv), the rests of r19(iv) are not applicable to our case,

(e) there is no specific legatee/devisee or creditor, as per r19(v) in our case, and

(f) no one possesses the capacity under r19(vi).

Argument of Mr. Chan

13. Mr. Chan attempted to persuade me to tick off the requisitions relating to the Renunciation by:

(a) reiterating that the Deceased named his first son in his Will as “executor and trustee” only, and

(b) suggesting a fall-back position that the wordings in the Renunciation “… and to letters of administration (with the said Will annexed) of the estate of the said deceased.” should be good enough to clear the doubt, if any.

Decision

14. With respect, I do not agree.

15. To start with, rule 35(1) NCPR clearly contemplates that an executor often possesses more than one capacity under the Will and he has to expressly renounce each and every of such rights.

“Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.”

16. Such proposition is also reflected at paragraph 153 at page 460 Tristram & Coote’s Probate Practice, 29th Edition:

“Thus, where an executor who is also entitled in another character renounces probate, the form of renunciation must include also a renunciation of his right to letters of administration (with will) in order to enable a grant to be made to some person with a lower title.  ...”

17. More important, by looking at the Specified Form No. 9 (Renunciation of Probate),

“WHEREAS the abovenamed and described deceased late of the above address died on the ……… day of ………………, 20……, at ………………… (place of death) ………………… having made and duly executed his last Will and Testament, bearing date the ……… day of ………………, 20…………, and thereof appointed his ……………… (relation) ……………, the undersigned ………… A.B. ………………, sole executor *[and residuary legatee and devisee (in trust)]

NOW I, the said …………… A.B. ……………, of ……………… (address) ………………… declare that I have not intermeddled in the estate of the said deceased, and will not hereafter intermeddle therein with intent to defraud creditors, and I do hereby renounce all my right and title to probate and execution of the said Will *[and to letters of administration (with the said Will annexed) of the estate of the said deceased]. ……

Note:     *These words or any other appropriate description must be included in the form where the executor is also entitled in a lower character, and has to be cleared off in that character by the applicant for the grant.”

one immediately observes that there are two square brackets and a corresponding note.  The second square bracket provides an easy job.  It is because one can simply leave it there in case that the executor is entitled to a grant in other lower capacities.   It is something suggested as per the extract of Tristram & Coote’s Probate Practice in paragraph 16 above.

18. However, with respect to the first bracket, it is a more difficult job and requires the practitioners to go through the 3-steps exercise as mentioned in paragraph 10 above.  One cannot simply leave the words in the square bracket because it only covers the capacity in r19(ii).  You have to describe all the proper capacities under r19 NCPR that the renunciant have renounced. 

19. The argument that the Deceased did not “name” somebody expressly in the Will as per r19(ii) or any other sub-rules appears to be not very persuasive as it is “the substance” of the appointment matters.  Further, the adoption of the words in the second square bracket does not advance Mr. Chan’s case because the Specified Form is asking for more, i.e. please also identify in the first bracket the precise capacity or capacities as per r19 NCPR whereby the renunciant has given up.

20. In the circumstances, the requisitions are to be complied with.

Discretion

21. At the end of the appointment, Mr. Chan represented that the renunciant was working in Heilongjiang (黑龍江) in the Mainland.  It would be difficult for him to amend the Renunciation.  Hence, in case that I would disagree with him in his submissions, he asked me to exercise my discretion to waive the amendment to the Renunciation.

22. In this respect, I agree to accept that, to view the matter from a practical point, probably, the renunciant wanted to give up “all” his rights to make the application and asked his brother to take up the job.  He really did not bother the “capacities” in which he renounced.  He simply left the matter in the good hands of the solicitors.

23. Further, rule 35(2) NCPR also adds that:

“(2)  Unless the Registrar otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.”

24. Hence, on a without-creating-precedent basis, I agree that the Renunciation needs not be amended upon the filing of an affidavit from Mr. Chan confirming that the first son has been informed of the court’s requisitions and that he has also agreed to renounce his right to the grant as per rule 19(ii) NCPR.