Hong Kong court revokes letters of administration as administrator makes misrepresentations in affirmation

In Fung Sing Wai v. Chow Chiu Wan and Others, the Court revoked letters of administration on the grounds that the administrator failed to establish that she was the deceased's wife and had made misrepresentations in her affirmation in support of her application for the grant.

Factual Background

The plaintiff was one of the children of Madam Lee ("Lee") and the deceased. There were eight defendants, including Madam Chow ("Chow"), four children of Chow (5^th to 8^th defendants) and the deceased and the plaintiff's siblings (2^nd to 4^th defendants). Letters of administration were granted to Chow in September 2008 (the "2008 Grant"). Lee and the deceased (who died without a will) passed away in June 1988 and in March 2008 respectively.

The Plaintiff argued that Lee was the deceased's only lawful spouse by virtue of their Chinese modern marriage in 1947. She claimed that Chow was never a spouse of the deceased and that Chow misrepresented her marital status when she applied for the 2008 Grant. The Plaintiff sought the following relief:

1. Revocation of the 2008 Grant;
2. Letters of administration granted to the Plaintiff or to other suitable person(s); and
3. An account by Chow of assets allegedly misappropriated by her.

Chow claimed that she had married the deceased under the customary Chinese law in 1949. On that basis she was the deceased's surviving wife, and therefore entitled to the 2008 Grant.

Court's reasoning and the decision

The Court first identified three factual disputes:

1. Whether there has been marriage ceremony between the deceased and Lee and Chow respectively;
2. If so, whether the marriage was/marriages were in accordance with the then governing law; and
3. Whether Chow had misrepresented her position in her affirmation filed in support of her application for the 2008 Grant.

The Judge reminded himself of the two objective tests he adopted in an earlier decision (Star Glory Investment V Kai Tuo (HK) Technology Co Ltd and Others) in assessing the credibility of witnesses, which are:

1. Whether that part of his testimony is inherently plausible or implausible; and
2. Whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Applying the tests, the Judge was satisfied that the Plaintiff and her witnesses were truthful and reliable. Chow did not argue that they were either incredible or unreliable in her counsel's closing submissions. The Judge concluded that there was a marriage ceremony between the deceased and Lee.

On the contrary, the Judge found Chow's witnesses were untruthful, unreliable, or both. Chow made inherently implausible claims during cross-examination, including that she never visited the family residence of the deceased before the alleged marriage and that she never met the deceased's sibling before or after the alleged marriage despite the fact that all parties were all living in Guangzhou at the time.

On the evidence, the Judge concluded there was a valid marriage between Lee and the deceased, but not between Chow and the deceased. As Chow was aware of Lee's marital relationship with the deceased and Lee's children were blood relatives of the deceased, the Court held that Chow had no valid grounds to believe the various representations she made in her affirmation in support of her application for the 2008 Grant. The Court therefore found that she had made misrepresentations in her affirmation. The Judge granted the relief sought by the Plaintiff accordingly.

Implications

Administrators play an important role in managing the assets of the estate in the best interests of the beneficiaries of the estate.  They are granted that role on the basis of the contents of their affirmations or affidavits in support of their applications, which is often untested evidence.  Affirmations and affidavits are made on oath, so they must be correct. If an applicant knowingly misrepresents the truth, the Court can and will revoke the letters of administration.

If you wish to discuss, please contact Richard Norridge, Joanna Caen or your usual Herbert Smith Freehills contact.