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HCAG 12943/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
APPLICATION FOR GRANT NO. 12943 OF 2009
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IN THE ESTATE of CHEUNG HUNG (張雄) late of Room 2509A, 25th Floor, Hei Wah House, Lok Wah South Estate, Ngau Tau Kok, Kowloon, Hong Kong, technician, single man, deceased (“the Deceased”)
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Before: Hon Lam J in Chambers
Date of Hearing: 1 December 2010
Date of Judgment: 15 December 2010
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J U D G M E N T
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1. The Applicants applied for a grant of Letters of Administration (with a will annexed) de bonis non in respect of the estate of Cheung Hung, deceased. Probate was granted on 25 October 2007 to the executrix named in the will of the deceased dated 14 January 2004 [“the Will”]. Unfortunately, the executrix died intestate before completing the administration. The Applicants are the siblings of the executrix. They are also beneficiaries of the estate named in the Will.
2. In the course of the application, the Probate Master raised some requisitions. The Applicants complied with some of them. The latest round of requisitions [“the Requisitions”] was raised by the Master in a letter of 4 August 2010 from the Probate Registry to the solicitors for the Applicants. I would summarize the Requisitions as follows,
(a) The Applicants are required to confirm that Huang Yanqiong in a decree absolute produced by the solicitor is the 黄燕瓊 named in the Will;
(b) The Applicants shall explain why Sze and Nicholas were included as beneficiaries;
(c) The above shall be set out in a supplemental affirmation.
3. The Applicants’ solicitor Mr Lau did not agree with the Requisitions. The Applicants therefore took out a summons on 8 October 2010 seeking an order from this court to set aside the Requisitions. It is an appeal pursuant to Rule 62(1) of the Non-Contentious Probate Rules [“NCPR”] Cap. 10A.
4. In his submissions, Mr Lau essentially made two general objections to the Requisitions,
(a) The Probate Registry has no jurisdiction to raise requisitions in respect of matters relevant only to distribution of estate as opposed to matters relevant to grant;
(b) By virtue of the distinction between a grant in common form and one in solemn form, the standard of proof in non-contentious business should be lower. In non-contentious business, the court should accept prima facie evidence without requiring any corroborative documentary evidence.
5. Mr Lau also made some specific points regarding each requisition. I shall discuss those when I deal with each requisition in question.
6. In his written submissions, Mr Lau also made some general remarks about the practice of the Probate Registry and citing some other cases as examples. Since I am not concerned with those other cases, and I do not find Mr Lau’s references to those other cases to be of any relevance or assistance in the disposal of this appeal, I do not find it necessary to address such remarks.
7. On the jurisdiction of the Probate Registry and the legitimate scope of requisitions, Mr Lau had raised similar challenge in the past in the case of Re Yip Ho (Deceased) HCAG 566 of 2000 (A Cheung J) and [2005] 4 HKC 330 (CA). In that case, A Cheung J reviewed the relevant statutory provisions and addressed Mr Lau’s submission on jurisdiction at paras. 38 to 40. The conclusion of A Cheung J was upheld on appeal, see para. 28 of the judgment of Tang JA (as he then was). A Cheung J accepted that the Registrar could not seek information that is wholly extraneous and irrelevant to the application for grant. However, His Lordship concluded that the information sought in the specified form is not irrelevant or extraneous to an application for grant (see paras. 39 to 40 of his judgment). In two earlier paragraphs (paras. 36 and 37), His Lordship explained why the information sought are relevant. They are relevant to the question of priority for applying for a grant and the suitability of an applicant to act as the administrator.
8. At the hearing on 1 December 2010, Mr Lau took a somewhat nebulous stance. On the one hand he submitted he would not argue that Re Yip Ho (Deceased) was wrong. However, he said the propositions set out in the judgment of Yip Ho were bald statements (meaning that no authority was cited in support of them) and as such they were only obiter and not binding. With respect, Mr Lau was wrong in law. Under our principle of stare decisis, a judgment of the Court of Appeal is binding on the lower courts notwithstanding that no authority was cited in that judgment. The only exception is where the judgment can be said to be per incuriam in not following an earlier authority binding on the Court of Appeal or a statutory rule. Further, so long as a proposition is germane to the decision at hand, it is not an obiter notwithstanding no authority was cited in support of it.
9. Mr Lau said the Court of Appeal failed to have regard to relevant English authorities on the proper jurisdiction of the probate court. He cited the following cases: Concha v Concha (1886) 11 App Cas 541; Re Ward [1971] 2 All ER 1249 and In re Berger, dec’d [1990] 1 Ch 118. I shall explain why I do not regard these authorities as undermining the judgment in Yip Ho.
10. I only need to cite two passages from these judgments. The first is a succinct summary of the position by Lord Blackburn in Concha v Concha (1886) 11 App Cas 541 at p.562 after referring to section 23 of the Probate Act of 1857 taking away the jurisdiction over suits for distribution from the Court of Probate,
“Sir C Cresswell when deciding, as judge of the Court of Probate, that probate should be granted to the executor of this will, had not to decide, and not only had not to decide but could not then or at any other time decide, what was the construction of that will, or what was its effect for the purpose of giving to legatees, or not giving to legatees. What he did decide was (and to that extent I think the decision was conclusive on everybody), that there was an executor who was entitled to have probate in England for the purpose of getting in and taking the property which was in England, and to that he was entitled if there was a will which made that executor a good executor according to the law of England …”
The issue in that case was whether a decision of the Court of Probate on domicile was a bar to a beneficiary from raising the question of domicile in subsequent proceedings on administration and distribution. The House of Lords held that it could not be a bar. Lord Blackburn continued at p. 562-3, referring to the administration of the estate,
“… it is to be administered by ascertaining the domicile and the law of the domicile; but that is to be done by a Court of distribution, which the judge of the Court of Probate was not.”
11. A modern statement of the distinction in the function of the court exercising its probate jurisdiction and one exercising its administration jurisdiction can be found in the judgment of Sir Denys Buckley in In re Berger, dec’d [1990] 1 Ch 118 at p. 133E,
“The function in English law of a probate court is to ascertain and determine what testamentary paper or papers is or are to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative.”
Further down the page, at p. 133G to p. 134B,
“… it is important to distinguish between the jurisdiction of a judge … trying a probate action from the jurisdiction of a judge … trying an administration action. The probate jurisdiction extends to the function referred to in the preceding paragraph. A judge exercising that jurisdiction can, of course, receive all evidence and entertain all submissions relevant to the performance of that function. He has, however, no duty to construe any of the instruments sought to be proved except so far as to do so may be necessary for the performance of that function. The probate court has no role to play in the administration of the testator’s estate in accordance with whatever valid testamentary disposition the testator may have made, nor in determining how far his intended dispositions are valid. Once the identity of the deceased’s testamentary papers has been determined and they have been admitted to probate, all questions of construction arising in the administration of the estate concern only the court of administration.”
12. I accept that these cases serve as authorities for the proposition that this court, in the exercise of its probate jurisdiction (and that includes the Probate Registry), should not decide on matter concerning the administration or distribution of the estate. Those matters should, if necessary, be determined by way of Order 85 administration proceedings. I have expressed similar sentiment in Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115 at paras. 86 to 88.
13. But it does not follow from this proposition that the Court of Appeal and A Cheung J was wrong in Re Yip Ho (Deceased). As A Cheung J explained, the purpose of seeking the information in the specified form about the beneficiaries is not to facilitate a determination on how the estate is to be administered or distributed. Rather, they are relevant to the questions of priority and suitability of an applicant.
14. Thus, in the case of an application by an executor named in a will, such information is not sought in the specified form because the court is not concerned with such questions. In a grant of probate, the court will not usually be concerned about the suitability of an applicant because an executor is appointed by the testator in the will. However, in the case of appointment of administrator, including administrator de bonis non with a will annexed, the court must consider these...
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