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The Bank Of New York v Adrienne Marsh Lefkowitz

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date15 November 1993
Year1993
Judgement NumberHCAP5/1991
Subject MatterProbate Action
CourtHigh Court (Hong Kong)
HCAP000005/1991 XCHRX THE BANK OF NEW YORK v. ADRIENNE MARSH LEFKOWITZ

HCAP000005/1991

1991, No. P5

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H E A N D O T E

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Probate - administration 'pendent lite' - transfer of assets to U.S.A. - whether infringement of s. 42 and s. 40(2) of the Probate and Administration Ordinance.

1991, No. P5

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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IN THE ESTATE OF NICHOLAS V. MARSH DECEASED

BETWEEN
THE BANK OF NEW YORK Plaintiff
AND
ADRIENNE MARSH LEFKOWITZ Defendant

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Coram: The Hon. Mr. Justice Sears in Chambers

Date of hearing: 8 November 1993

Date of delivery of judgment: 15 November 1993

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J U D G M E N T

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1. This is an application under s.36 of the Probate and Administration Ordinance or under the inherent jurisdiction of the Court to permit two administrators 'pendente lite' to transfer certain funds to the United States. Nicholas Marsh was a wealthy American citizen, domiciled in America, who made a will on 26th May 1983, a codicil was added on 2nd October 1986 and he died on 15th March 1988.

2. He bequeathed a life interest to his wife who subsequently died on 13th May 1990 and his three daughters had certain trusts created for them. The Defendant to this action is the second daughter who was a direct beneficiary of 30% of the estate. Mr. Marsh, as I have said, was domiciled in the United States and had assets there. He also had certain cash and stock in Hong Kong. It is not necessary for the purposes of this application to set out how all those assets were acquired, save to point out that the Defendant claims that money which went from the deceased to Mr. Li Ka Shing are held in trust for her. The Defendant had been appointed executrix in America, but as a result of a dispute there, she was removed from that position on 19th April 1990 and the Bank of New York were appointed permanent executor and trustee. By virtue of the dispute in the United States, an action P5 was commenced in Hong Kong by two attorneys from the bank who were appointed administrators 'pendente lite' by this Court on 12th May 1992. I should emphasize that the only 'lis' appears to be the American dispute. The validity of the will has not been and is not challenged. I am grateful to counsel's assistance in guiding me along a legal path where my feet seldom tread and if I have not fully appreciated some of the submissions made then the fault is mine.

3. A large number of affidavits had been filed which I have read, but from this mass of paper the issues in this application can be distilled. There is a substantial dispute between Adrienne Lefkowitz and the Bank of New York. She alleges that they have wasted the estate's assets in the administration in the United States, they are unfit to serve as a fiduciary, they are dishonest and hostile to her. These allegations are denied and she is said to be a trouble maker, highly litigious and bordering on the verge of becoming a vexatious litigant. In Hong Kong Action 4573 of 1993, the Defendant sues the administrators of the Bank of New York over money which went from her father to Mr. Li Ka Shing. This she says, approximately HK$12m, is held in trust for her. In MP1638 of 1992, the Defendant claims that the Bank of East Asia should be appointed administrators in place of those present and this action is for hearing in April 1994.

4. It is not surprising, therefore, that this current application has provoked much argument. The Defendant is suspicious of anything the Bank or the administrators seek to do and she is accused by them of trying to frustrate a sensible application. The American administration has had heavy expenses and the cash position does not appear to be liquid. The American administrators have paid out certain sums of money. In the affidavit of Mr. Gordon Oldham, senior partner of Messrs. Oldham Li & Nie, solicitors for the Bank of New York, there is set out at pages 110 and 111 certain matters in respect of monies which have either gone from the United States to Hong Kong or for which the American adminsitrators are liable. For example, at paragraph 5, he says "In respect of the US/New York Estate Tax, it has been reduced by some US$5.15m. In respect of New York/US Income Tax it has been reduced by a total of US$1.789m. Accordingly, the New York Estate has been diminished to the sum of US6.9m in consequence of estate taxes and income taxes in the United States and New York". Para 6 "Furthermore, in order to meet the...

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