RE WONG SHU PUI

HCCA 2138/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO. HCCA 2138 OF 2007

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D E C I S I O N

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Application

1. This is an argument as to who should be the administrator of the estate of Mr. Wong Shu Pui (“the Deceased”).

Background

2. The Deceased died intestate on 25 July 2007, leaving 2 persons entitling to his estate (“the Estate”).

(a)       Madam Lam Pik Ying Patty, the lawful widow and Person Warning herein (“the Widow”),

(b)       Madam Wong Ka Yue Jennifer, the lawfully adopted daughter (“the Daughter”).

3. The Widow applied for the letters of administration of the Estate on 16 August 2007.  However, the application was later stopped by the entering of a Caveat by Madam Pat Ping Ping (“Madam Pat”), a good friend of the Deceased.  By HCA 1985/2007, Madam Pat further sued the Personal Representative of the Estate for loans in the sum of $5 m. Under these proceedings, Madam Pat had consented that the Widow was to be appointed by this Court to defend for the Estate.

4. On 31 January 2008, the Widow took out a summons to strike out the Caveat.   Madam Pat opposed to it.  I heard the application on 7 July 2008.  7 days earlier, Madam Pat issued another summons asking this Court to appoint the sibling(s) of the Deceased, Madam Wong Sai Ming and/or Madam Wong Yuk Lan (“the Siblings”) to be the administrator(s).

Ruling

5. Having heard from Counsel from the parties, I reserved my decision to be handed down.  Now, upon consideration, I have decided to allow the application of the Widow and dismiss that of Madam Pat.

Reasons

6. Madam Pat sought to argue that the Widow was not a fit and proper person to administer the Estate.  However, she failed to do so on balance.

Bad Character?

7. Mr. Au-Yeung, Counsel for Madam Pat, diligently led me go through quite some evidence filed by his client, purporting to demonstrate, inter alia, that the Widow lied about her relationship with the Deceased.  In fact, she was separated with the Deceased.  She did not know well about the Deceased.  She did not care the Deceased so much and she did not love the Deceased as alleged.  However, such accusations are neither here nor there because they are not “bad character” affecting proper administration of the Estate.

8. It should be noted that, under Caveat proceedings, and as contemplated by rule 44(9) and (10) of the Non-Contentious Probate Rules (Cap. 10A) (“NCPR”), a caveator having no interest contrary to the person warning, should show cause against the sealing of a grant to the latter.  Such “cause” must be with regard to due performance of being an administrator, but not bad character in generally and/or in the eyes of certain people.  This Court is not asked to adjudicate if the Widow was a good wife, a good daughter-in-law or a good sister-in-law, but fit and proper person to administer the Estate in its best interest.

9. Further or in the alternative, I do not consider that this Court is in a position to resolve the factual disputes between the parties on the affidavit evidence filed.  As burden of proof falls on Madam Pat, she has failed to discharge the same.

Incompatible Interest?

10. Mr. Au-Yeung further suggested that the Widow had an interest incompatible with due administration of the Estate and, therefore should be excluded.  Briefly, it was said that the Widow denied the clear claims of Madam Pat under HCA 1985/2007 and she also wrongfully attacked the integrity of the latter.  Upon thoughts, I refuse to accept them.

(a)       The parties’ disputes under HCA 1985/2007 are to resolve therein.  For the time being, parties are at the early stage of the proceedings and it suffices for me to conclude that merits of both parties remain neutral for the time being.

(b)       The character of Madam Pat is not particularly relevant before this Court.  She is not putting up herself as a candidate for the administrator.  I consider the allegations made by the Widow against Madam Pat are “responses” on top of her denial to the attack upon herself by Madam Pat.  In any event, these factual of disputes cannot be resolved by way of the affidavit evidence before this Court.

Sufficient Means?

11. The Widow was further attacked on the ground that she did not have the financial means to be the administrator. However, as a matter of principle, I do have some doubt as to whether poverty should be a ground for depriving administratorship.  Mr. Au-Yeung has not adduced any authority to support such proposition.  Further, on facts of the present case, the Widow has been actively prosecuting her case herein as well as defending HCA 1985/2007 with assistance from solicitors and Counsel, on balance, I am not satisfied she does not have sufficient means to engage professional assistance.

Exercise of Discretion

12. I have rejected to accept that the Widow is not fit and proper to administer the Estate. Probably, there is no need to consider the Daughter and the Siblings because the Widow enjoys the top priority to the grant under rule 21 NCPR.  Nonetheless, as both Counsel have dealt with the exercise of my discretion under section 36 Probate and Administration Ordinance (Cap. 10), I will briefly deal with the same.

13. In my view, I am not satisfied that the Siblings are to be appointed in the circumstances.  It is now common ground the Widow and Daughter are the only beneficiaries to the Estate.  They clearly do not trust the Siblings to protect their interest.  Further, as it has transpired that the claim by Madam Pat under HCA 1985/2007, if proved, will exhaust the Estate leaving the Widow and Daughter nothing to inherit.  The proceedings are vigorously contested because the Widow does not agree to the claim.  If the administrator is to the handled by the Siblings, they will be put into a very difficult position if they will come to a view that the claim or any part of it should be conceded.  I am afraid that it will only trigger further proceedings within the administration.  It is certainly not in the interest of the Estate.

Conclusion

14. In summary, regarding the Widow’s summons, I order that:

(a)       The Caveat filed by Madam Pat dated 10 September 2007 shall cease to have effect.

(b)       Letters of Administration in respect of the Estate is to be granted to the Widow, if entitled to.

(c)       There is an order nisi that Madam Pat shall bear costs of the Widow in relation to the Caveat proceedings and application herein, including all costs reserved and Certificate of one Counsel for hearing on 7 July 2008, but excluding the costs in preparing hearing bundles A, B and C under HCA 1985/2007, on party-and-party basis, to be taxed if not agreed.

15. As to the section 36 Probate and Administration Ordinance summons, it is dismissed with costs to the Widow and borne by Madam Pat, including Certificate of one Counsel for hearing on 7 July 2008, but excluding the costs in preparing hearing bundles A, B and C under HCA 1985/2007, on party-and-party basis, to be taxed if not agreed.