PRACTICE DIRECTIONS – 20.2
PROBATE AND ADMINISTRATION OF ESTATE PROCEEDINGS
(OTHER THAN APPLICATIONS UNDER
THE NON-CONTENTIOUS PROBATE RULES (CAP.10A))
Part I : Introduction
1. This Practice Direction supplements the practice and procedure in Order 76, Rules of the High Court (Cap.4A) (“RHC”). In particular, it prescribes the procedure for an action for revocation of grant of probate of a will or letters of administration of the estate of a deceased person, administration pendente lite and rectification of a will. This Practice Direction also sets out the procedure for removal or substitution of an executor or administrator under section 33, Probate and Administration Ordinance (Cap.10) (“PAO”), and the taking of accounts in administration actions concerning the estate of a deceased person. Finally, it deals with the applicability of mediation to those contentious proceedings set out in Part V.
2. For the avoidance of doubt, this Practice Direction shall not apply to applications under the Non-contentious Probate Rules (Cap.10A) (“NCPR”).
3. For the purpose of this Practice Direction,
(1) “probate action” shall have the same meaning as set out in Order 76, rule 1(2);
(2) “administration action” shall have the same meaning as set out in Order 85, rule 1 save and except that it does not include an action for the execution under the direction of the Court of a trust; and
(3) references to rules are references to RHC.
Part II : Probate Proceedings under Order 76
A. General
A.1 Writ
4. The writ and all subsequent court documents relating to a probate action must be marked at the top “In the estate of [name] deceased”.
5. The writ must be indorsed either with a statement of claim (Order 6, rule 2) or a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates (Order 76, rule 2(2)).
6. The writ, properly indorsed, shall be issued out of the Probate Registry1.
A.2 Affidavit of testamentary scripts
7. Practitioners are reminded of the requirements under Order 76, rule 5, which are very often overlooked. Non-compliance may result in delay and the court may make an adverse costs order against the defaulting party.
8. The affidavit must be filed and the testamentary scripts must be lodged with the Probate Registry. The testamentary scripts must not be marked in any way.
A.3 Service of pleadings
9. Where a statement of claim is not indorsed on the writ, Order 76, rule 7 shall apply to the service of the statement of claim. Unless the court gives leave to the contrary, a defendant who gives notice of intention to defend must serve his defence before the expiration of 28 days after service of the statement of claim on him (Order 18, rule 2).
10. Where a statement of claim is indorsed on the writ, unless the court gives leave to the contrary, a defendant who gives notice of intention to defend must serve his defence before the expiration of 28 days after the time limited for acknowledging service of the writ (Order 18, rule 2). If a defendant wishes to serve his defence after the filing of the affidavit of testamentary scripts by the plaintiff under Order 76, rule 5, he must seek an extension of time for so doing. Such application should be made as expeditiously as the circumstances of the case permit.
A.4 Compromise of action
11. If at any time the parties to a probate action agree to a compromise, they should immediately file a consent summons setting out the proposed directions for the court’s consideration and approval. Depending on the actual circumstances, the court may:
(1) order the trial of the action before a Judge in open court on written evidence under Order 76, rule 12, which will lead to a grant in the solemn form; or
(2) order that the action be discontinued or dismissed under Order 76, rule 11, which will lead to a grant in common form.
12. If the consent summons seeks an order for granting of probate in solemn form or for pronouncing against the validity of a will, the action will not be discontinued. Instead, there will be a trial under Order 76, rule 12.
13. A consent summons seeking discontinuance or dismissal of a probate action, and an order that a grant of probate of the will in common form, or letters of administration of the estate of the deceased person be made to the person if entitled thereto can be dealt with by a master, provided that an order for revocation of a grant of probate or letters of administration is not sought at the same time.
B. Action for revocation
14. The following procedure shall apply to an action for revocation of a grant.
B.1 Where the action is taken out by the grantee
15. If there is no objection to the revocation, the action shall be brought by way of an ex-parte originating summons together with a supporting affidavit. The original grant shall be lodged in accordance with Order 76, rule 4. In the supporting affidavit, the grantee shall:
(1) state the ground of revocation and if it is based on the discovery of a deceased’s will, give an explanation for the failure to previously locate the will;
(2) state that the persons affected by the revocation have no objection to the revocation and file their written consent;
(3) state whether he has taken up any steps in the administration since the grant was issued; and
(4) if part or the entire estate has been administered, unless the court otherwise directs, give an account of the assets administered.
16. If there is objection to the revocation, the action shall be brought by way of a writ under Order 76 or an inter-partes originating summons.
B.2 Where the action is brought by any person other than the grantee
17. The grantee must be joined as a party.
18. If the grantee consents to the application, the action shall be made by an originating summons with a consent summons supported by an affidavit which deals with the matters set out in paragraph 15 above (with necessary modifications).
19. If it is not clear whether the grantee will consent to the application, the applicant may:
(1) treat the matter as contentious business and commence a probate action under Order 76; or
(2) issue an inter-partes originating summons and seek directions from the court for the purpose of ascertaining the position of the grantee. If the grantee indicates that the application will be opposed, directions should be sought on whether the proceedings should be converted into a writ action.
B.3 Disposal of non-contentious actions
20. Unless directed by the court, all ex-parte originating summonses under paragraph 15 and all consent applications under paragraph 18 will be disposed of on paper without a hearing. Such summonses and applications will be considered by a master in the first instance, who may raise requisitions before passing the same to the Judge for further directions or the making of the necessary order.
C. Administration Pendente Lite
C.1 Application for the appointment of administrator pending suit
C.1.1 The Summons
21. An application under section 40, PAO for an order for the grant of administration pending the determination of a probate claim should be made by summons in a probate action actually pending, and may be returnable before a master.
22. The summons naming the proposed administrator (subject to section 25, PAO) with all the directions required must be supported by written evidence, and accompanied by a draft order. The application should be served on the person proposed to be appointed as administrator and every other party to the claim.
C.1.2 Written Evidence
23. The written evidence should be in the form of affidavit evidence, and should include but not be limited to the matters set out below. Testamentary Scripts are not required except in so far as they may be necessary exhibits to any affidavit.
(a) Reason
24. State the facts showing why it is necessary and expedient for some steps to be taken to preserve or protect some asset of the estate.
(b) Proposed Administrator
25. State:
(1) The full name and address and qualifications of the proposed administrator.
(2) The value of the property which is likely to come into his hands.
(c) Security
26. If dispensation is asked for on the ground that:
(1) All the parties interested consent to the dispensation of security, such written consent should be lodged.
(2) The proposed administrator has already in force sufficient security to cover any liability for acts and omission as administrator, supporting documents are to be lodged in support.
27. Unless the court otherwise directs, the security shall be by guarantee2. A guarantee must be filed, and it shall be kept as of record until duly vacated3.
28. If time is required for the provision of security, state the time required for the provision of security, and, if applicable, provide a written undertaking by the applicant to be responsible for the administrator’s receipts and liabilities until security is given.
(d) Remuneration
29. (Subject to the provisions of section 60(1)(2)(b), PAO that the remuneration shall not exceed 5% on the first one thousand dollars, 2.5% on the next $4,000 and 1% on the balance of the gross value of all property of whatsoever nature administered) State:
(1) the proposed scale or rates of professional charges according to which the proposed administrator is to be remunerated;
(2) who is to be responsible for paying the administrator;
(3) the fund or property from which the administrator is to cover his remuneration;
(4) whether an administrator can only receive such sum as is reasonable and proportionate as to be determined by the court, and that without which determination the administrator may not recover any remuneration for his services; and
(5) if the administrator or any party may apply at any time for such a determination to take place.
(e) Administrator’s Accounts
30. Whether an account is ordered will depend upon the size and nature of the estate and upon any other relevant factors. If there is consent to dispense with formal accounts, a written consent from all parties interested should be lodged.
31. If rendering of accounts is required, state
(1) how the accounts are to be prepared4;
(2) the intervals or dates for rendering the accounts, and whether an account is to be rendered at the end of his first year of administration, and whereafter no further account needs to be rendered until he is discharged; and
(3) the persons to be served with the accounts.
(f) Payment into Court by Administrator
32. If payment into court is required, state the amounts and frequency of payments into court to be made.
(g) Powers and Acts of the Proposed Administrator
33. An administrator pendente lite so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate5. If a limitation is to be imposed in respect to the rights and powers of the proposed administrator, state the limitation, and set out any specified acts of the proposed administrator that are to be under the control and direction of the court.
C.1.3 Other Supporting Evidence
34. In addition to the supporting affidavit evidence, the following documents must be filed:
(1) A written consent of the proposed administrator to act; and
(2) An affidavit as to the proposed administrator’s fitness by some disinterested person.
C.2 After an order of appointment is made
35. The solicitors for the applicant shall serve a copy of the judgment or order appointing an administrator pendente lite on:
(1) the person appointed as administrator;
(2) unless the court orders otherwise, every other party to the proceedings; and
(3) such other persons as the court may direct.
C.3 Application for Grant
36. Before an administrator pendente lite can act, the administrator must obtain a grant from the Probate Registry. The application for the actual grant should be made as soon as practicable, but in any event not later than 14 days after the service of the order on him. The usual oath in the appropriate form (“Specified Form”)6 for a grant pending suit, the sealed copy order or judgment and the approved guarantee together with the necessary papers showing the deceased’s assets must be filed with the application.
D. Rectification of a will
37. The following procedures shall apply to an application for rectification of a will.
D.1 Before an application for grant is lodged
38. The application, if unopposed, shall be made by way of an ex-parte originating summons returnable before a master supported by an affidavit.
39. In the supporting affidavit, the applicant must:
(1) state the grounds in support of the rectification;
(2) adduce all evidence regarding the testator’s intentions;
(3) state the matters in issue including but not limited to the following:
(a) in what respects the testator’s intentions are not understood; and
(b) the nature of any alleged clerical error; and
(4) exhibit any comments in writing by any person having an interest (“Interested Person”) under the will whose
interest might be prejudiced by the rectification applied for.
40. The master may raise all necessary requisitions and give directions including the giving of notice to every Interested Person. If he is satisfied that the application is made out, he may order that the will be rectified accordingly.
D.2 In the course of an application for grant or after a grant has been issued
41. If the application is unopposed, the application should be made by way of an ex-parte affidavit filed in the underlying application for the grant. The affidavit should contain all the matters stated in paragraph 39 above.
42. If the application is opposed, the application shall be commenced by writ, originating summons or probate counterclaim as the case may be.
D.3 When a probate action has been commenced
43. The application shall be made by way of an inter-partes originating summons returnable before a Judge in chambers with notice to all Interested Persons.
Part III : Removal or Substitution of Executor or Administrator under Section 33(3), PAO
A. Application for Removal
44. An application may be made by way of an inter-partes originating summons, together with a supporting affidavit. The following documents must be lodged with the application at the Probate Registry :
(1) A sealed or certified copy of the grant of probate or letters of administration;
(2) Where the application is to substitute or remove an executor and is made before a grant of probate has been issued, the original or, if the original is not available, a copy of the will.
45. Every administrator of the estate (if a grant has been obtained), all persons having a beneficial interest in the estate, residuary beneficiaries (unless numerous) should be joined as a party, unless their written consent to the application is available.
46. The supporting affidavit should set out the grounds of the application and the following information so far as it is known to the plaintiff:
(1) brief details of the property comprised in the estate, with an approximate estimate of its value, and any income that is received from it. If the personal representative has partially administered the estate, an account should be exhibited giving brief details of the size, value and nature of the assets administered;
(2) brief details of the liabilities of the estate;
(3) the names and addresses of the persons who are in possession of the documents relating to the estate if they are not in the possession of the plaintiff; and
(4) the names of the beneficiaries and their respective interests in the estate, confirming whether there exist minority interest or interests of persons under disability.
B. Application for the appointment of a substituted administrator or executor
47. If the application is for the appointment of a substituted administrator, the supporting affidavit shall further include the name, address and occupation of such person proposed to be appointed.
48. In addition, the following documents must be filed or exhibited as the case may be:
(1) A signed consent to act;
(2) An affidavit by some disinterested person as to the fitness (including the background, education, training and experience) of the person proposed to substitute the administrator or executor, if an individual, to act;
(3) An affidavit by the proposed substituted administrator in the appropriate Specified Form (with necessary modifications); and
(4) If any property is required to be vested in the substituted administrator, a draft vesting order should be lodged.
49. If the application is non-contentious, the solicitors for the plaintiff should state so in a covering letter. In addition to the supporting affidavit containing the matters set out in paragraphs 46 and 47 and the documents specified in paragraph 48 above, the solicitor should file the written consent of all parties interested, including the beneficiaries. The originating summons shall be placed before a master. The master may give further directions if necessary and dispose of the application on paper or refer it to a Judge.
50. If the application is contentious, the originating summons shall be placed before a Judge.
C. After an order of removal/substitution is made
51. The solicitors for the plaintiff/applicant shall serve a copy of the judgment or order on:
(1) the person appointed as substituted administrator or executor;
(2) unless the court orders otherwise, every other party to the proceedings; and
(3) such other persons as the court may direct.
D. Filing of the Document with the Probate Registry
52. The following documents shall be filed with the Probate Registry to enable the memorandum of the order to be endorsed on or permanently annexed to the grant:
(1) The original grant (if it has not been lodged); and
(2) A sealed copy judgment or order (which must be accompanied by a note of the full name and date of death of the deceased if it is not apparent on the face of the order).
53. Where the application is to substitute or remove an executor and it is made before a grant of probate has been issued, paragraphs 48(3) and 52 do not apply. Where in such a case an order is made substituting or removing an executor, a sealed copy of the order must be sent to the Probate Registry where it will be recorded and retained pending any application for a grant. An order sent to the Probate Registry in accordance with this paragraph must be accompanied by a note of the full name and date of death of the deceased, if it is not apparent on the face of the order.
Part IV : Taking of Accounts in Administration Actions
54. If the court orders an account to be taken in an administration action, then unless otherwise directed by the court, the account may be taken by a master.
55. When ordering accounts to be taken, the court may, at the same time or subsequently, give directions as to the manner in which the account is to be taken or verified including directions as to who is to lodge the accounts and within what period, within what period any objection to the accounts is to be lodged, and as to arrangements for the inspection of vouchers and other relevant documents.
56. Without prejudice to the generality of paragraph 54, the master may:
(1) direct parties to formulate specific questions or issues for the resolution of the dispute;
(2) direct the filing of affidavit evidence or witness statements;
(3) direct that the filing of the relevant books of account shall be evidence of their contents and that any party may take such objections to the contents as he thinks fit;
(4) direct a preliminary hearing to resolve any issues that have arisen; and
(5) give directions to facilitate mediation.
57. Unless the court otherwise directs, the accounting party must make out the account by separately numbering each distinct account and exhibiting it to an affidavit or a witness statement verifying it.
58. The objecting party who wishes to contend that the accounting party has received, or should be treated as having received, more than the amount stated in the account, or alleges that the account contains errors in respect of an amount or is otherwise inaccurate, must, unless the court directs otherwise, give to the accounting party written notice of those objections. The notice must either contain a statement of truth or be verified by an affidavit or a witness statement to which the notice is exhibited. The notice must specify:
(1) the amount by which it is contended that the account understates the amount received;
(2) the amount which it is contended the accounting party should be treated as having received in addition to the amount he actually received;
(3) the alleged inaccuracies; and
(4) in each case, the grounds for the contention.
Part V : Mediation
A. General
59. In probate disputes, the parties are usually immediate family members or are known or related to the deceased person. They are therefore encouraged to attempt mediation as a possible cost-effective means of resolving their disputes as well as for maintaining family harmony.
60. For probate actions commenced by writ under Order 76, Practice Direction 31 shall apply.
61. For contentious proceedings commenced by originating summons under Sections B, and D of Part II, Parts III and IV of this Practice Direction, this Part shall apply. Further, to promote the use of mediation, the court may impose cost sanctions in the manner stipulated in Practice Direction 31.
B. Where all parties are legally represented
62. This Section applies to proceedings in which all parties are legally represented.
B.1 Mediation Certificate
63. The plaintiff shall, before the expiration of 14 days after the defendant has acknowledged service contesting the proceedings (or, if there are two or more defendants, at least one of them has acknowledged service contesting the proceedings) file in court and serve on the defendant a Mediation Certificate in the form as per Appendix B of Practice Direction 31 (with modifications if necessary) together with the supporting affidavit (if it has not been filed together with the Originating Summons).
64. The defendant must likewise file and serve a Mediation Certificate together with his affidavit evidence he wishes to adduce. In any event, the Mediation Certificate shall be filed not later than 28 days after service on him of the plaintiff’s Mediation Certificate.
B.2 Mediation Notice and Response
65. If a party (“the Applicant”) wishes to attempt mediation, he should as soon as practicable after filing the Mediation Certificate serve a Mediation Notice on the other party or parties (“the Respondent”) in the dispute in the form and containing the information as per Appendix C (with modifications if necessary) of Practice Direction 31, and signed by the Applicant or his solicitor.
66. Upon receiving the Mediation Notice, the Respondent should respond to the Applicant by way of a Mediation Response within 14 days (or such other time as the parties may agree or as the Court may direct) in the form and containing the information as per Appendix D (with modifications if necessary) of Practice Direction 31, and signed by the Respondent or his solicitor.
67. Where the parties agree on some (but not all) proposals in the Mediation Notice, the parties should as soon as practicable attempt to see whether agreement can be reached on those proposals over which they differ. Any agreement consequent upon such discussion should be reduced into writing in a minute called the Mediation Minute signed by the parties or their solicitors.
68. Where the parties are unable to reach agreement on certain proposals in the Mediation Notice and Mediation Response in relation to the mediation:
(1) If the parties are willing to have their differences resolved by direction of the Court, they may make a joint application to the Court for directions resolving the points of difference between them; and
(2) in the absence of such willingness, any party may apply to the Court for directions and the Court may give such directions as are appropriate to resolve differences between the parties regarding the proposals that they have each made in the Mediation Notice and the Mediation Response respectively, but only in respect of the matter of time referred to in paragraph 66 above and the matters referred to in paragraphs 4, 5, 6 and 7 of the said Notice and Response7.
69. The parties may apply to a master or a Judge for an interim stay of the proceedings pending the progress of any agreed mediation or further order. The stay application, specifying the anticipated duration of the agreed mediation, can be made by way of a consent summons.
70. The Mediation Notice and Mediation Response shall be filed in Court at the time of the service of the same on the other party. The Mediation Minute shall also be filed in Court within 3 days after it has been signed by or on behalf of both parties. These documents may be taken into account by the Court on questions of costs.
C. Where one or more parties are not legally represented
71. The fact that there are persons acting in person in a proceeding does not mean that the case is unsuitable for mediation. A party may still initiate mediation in accordance with the procedure set out in Section B above. The court may also seek necessary information for the purpose of considering whether, at a suitable stage, mediation is appropriate, and give necessary directions that the parties should follow the procedure set out in Section B with any necessary modifications.
Part VI : Commencement
72. This Practice Direction shall supersede Practice Direction 20.2, and come into effect on 1 August 2012.
Dated this 2nd day of July 2012.
| (Geoffrey Ma) | |
| Chief Justice | |
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|
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1 The requirement of leave to issue writ in probate action under Practice Direction 20.2 shall cease to have effect forthwith.
2 Order 30, rule 2 (3).
3 Order 30, rule 2 (4).
4 When an account is required, it should be verified by affidavit and should consist of cash account (including his expenses) and an inventory, i.e. a schedule listing (a) assets other than cash in his hands at the commencement of the accounting period and (b) assets other than cash acquired by him during that period.
5 Section 40(2), PAO.
6 Forms specified by the Registrar pursuant to Rule 2A of the NCPR by general notice published in the Gazette.
7 Paragraph 68(2) is directed at facilitating the mediation by having the Court resolve differences concerning the details or mechanics of the mediation process where the parties have agreed to attempt mediation. The Court may not, for instance, be asked to direct a party to engage in mediation or to appoint a particular mediator over the opposition of the other party, unless both parties are willing to have their differences resolved by the Court. See paragraph 68(1).
