"Jumping the queue" – Hong Kong Court considers applicant's duty to conduct a diligent search before applying for grant of administration

The very first stage of the estate administration process is for the named executor in a will to apply for probate. However, in the recent Hong Kong High Court decision of Lam See Ming Emily v Lam See Ngar Miranda [2021] HKCFI 3314, the Plaintiff failed to apply for grant of probate for over four years. As a result, not only was she potentially intermeddling in the deceased's estate in the absence of grant of probate, but she also created an opportunity for her elder sister, the Defendant, to take out an application for a grant of administration of the estate of the Deceased on the basis that the Deceased died intestate.

This case is a helpful reminder to executors and trustees that the belief that things will not become contentious simply may not hold. Had the Plaintiff made a timely application for a grant of probate and communicated to the Defendant the existence or contents of the will, the family may have saved valuable time and costs litigating.

As for applicants for a grant of administration, Lam See Ming Emily also demonstrates that the Court will take seriously the applicant's duty to conduct diligent search before his or her application. In the Court's words, the applicant is "duty bound to make all necessary inquiries within his or her power to ensure that the deceased had not made any will", and this includes inquiring of his or her family members and relatives who can reasonably be supposed to have such information.

Background

The Plaintiff and the Defendant are siblings. In October 2011, their mother executed a will naming the Plaintiff (the younger daughter) as the sole executrix and the beneficiary of the bulk of her estate, and the Defendant (the elder daughter) as the residuary legatee. The mother eventually passed away in January 2015, yet the Plaintiff did not take any steps to apply for probate.

In June 2019, unbeknownst to the Plaintiff, the Defendant applied for and obtained a grant of administration of the estate of the deceased on the basis that she died intestate. In February 2021, the Plaintiff commenced proceedings against her sister to revoke the grant on the ground that the mother in fact left a will which appointed her as the executor. The Defendant opposed those proceedings.

Judgment

Whether the Defendant's opposition was frivolous and unmeritorious

It is established that a grant may be revoked where it has been obtained upon a false suggestion, whether made ignorantly or fraudulently, which obscures a defect in the title to the grant. A representation that the deceased died intestate when he or she in fact died leaving a will must render the entitlement of the grantee to the grant defective.

The Court considered whether it should summarily dispose of the application. The Court may do so if it concludes that the Plaintiff is entitled to the relief sought notwithstanding the Defendant's opposition, such as when the Defendant's opposition is clearly frivolous or unmeritorious.

The Court first placed emphasis on the Defendant's manner of lodging documents, and held that the repetitive filing of affirmations and documents by the Defendant was inexplicable by the mere fact that she was unrepresented. This was demonstrated by the fact that, even after the Plaintiff took out the strike out summons, the Defendant filed in repetition her defence and witness statement, and sent to Court her letter enclosing various documents without explaining the extent to which the documents were different from those previously lodged.

Second, the Court observed that the contents of the documents lodged by the Defendant were "prolix and substantially irrelevant" to the crucial question as to whether the grant should be revoked on the ground that the deceased, as a matter of fact, did not die intestate but left a will. Instead of putting forward credible evidence to challenge the existence or validity of the will, the Defendant only suggested that she did not know the existence of the will and the Plaintiff was not suitable to be the executor because of her conduct. The court also found the circumstances of the execution of the will straightforward and not peculiar.

Third, the Court considered that the Defendant could not be said to have discharged her duty of diligent search to see if the deceased had made a will, before she could justifiably depose to the belief that the deceased left no will. The fact was that the Defendant went ahead with her application for the grant in the absence of knowledge of the Plaintiff.

As the contentions of the Defendant did not add up to proper challenge to the existence or validity of the will, the Court held that the Defendant's opposition was clearly without merit and frivolous.

Suitability as executor

The Defendant also criticised the Plaintiff's conduct and alleged that the Plaintiff was not a suitable person to administer the estate of the deceased. The Court considered the starting point is that a person named as the executor is prima facie the choice of the testator as part of his or her testamentary intention, and the Court should be slow to deny giving effect to this unless there are circumstances disentitling the named executor to act as such. The Court will take into consideration the expeditious and economical administration of the estate, and may consider circumstances other than that of the administration of the estate. Further, trivial and personal complaints are irrelevant. There must be a nexus between the alleged bad character and the executor's suitability to administer the estate.

Here, the Defendant accused the Plaintiff of having committed fraud on the deceased for four decades prior to the deceased's death, and she even blamed the Plaintiff for the Deceased's cancer and death. The Court agreed that the Defendant's criticism was frivolous, scandalous and oppressive, and considered the events after the deceased's death to be relatively more relevant. In the circumstances, the Defendant's complaints did not point to the Plaintiff's deviation from the wishes of the deceased, and there was no sufficient ground for the Court to conclude that it was necessary or convenient to appoint someone other than the Plaintiff as the executor.

Decision

The Court ordered inter alia that the Defendant's grant shall be lodged with the Court and revoked. The Plaintiff was given liberty to apply for probate in respect of the deceased's estate.