Probate – Removal of executor – Noncontentious application – Correct approach considered

YU HONG PING v KENNETH
YUEN [2009] 6 HKC 347

Court of First Instance
Miscellaneous Proceedings No 1104 of 2009
Lam J
17 August, 24 August 2009

Edward CT Wong & Co for the 1st and 2nd plaintiffs.
The defendant in person (no intention to contest the proceedings).

An uncontested application was made under the Probate and Administration Ordinance (Cap 10) s 33(3) for the removal of an executor. The executor had consented to his own removal due to old age and was, in fact, one of the plaintiffs. The court had to determine whether the application before it fell
within the scope of non-contentious or common form probate business as
defined in s 2 of the Ordinance. In doing so, the court had to consider whether the probate master had power to deal with the matter.

Held, adjourning the matter to chambers to be considered by a probate master:

Given the non-contentious nature of the application and having regard to the expertise of the probate masters, there was no reason why the matter could not
be adjourned to chambers to be dealt with by a probate master.

The original grant should be lodged in court by the personal representative pending the outcome of the application. If the order was made to remove one of the executors, it would be endorsed on the original grant. This similarly applied to substitution of personal representatives.

The court was not acting as a rubber stamp in non-contentious applications. It must still be satisfied with the statutory criteria before discretion could be exercised: s 33(3). In doing so, the court must have regard to: (i) the size of the estate and the nature of the assets; (ii) the background and education, training and experience of the remaining and substituted personal representatives; and (iii) the interests of the beneficiaries, especially if there was minority or disability interest.

Future similar cases could be dealt with in a similar manner. In order to do so, the plaintiff ’s solicitors should state in a covering letter that the application was non-contentious and confirm that the following documents had been filed: (i) original grant; (ii) if the personal representatives have partially administered the estate, an account; and (iii) the written consent of all interested parties, including the beneficiaries. Papers would be placed before the probate master to determine whether the application could be dealt with on papers or be referred to a judge. The master could also give further directions on paper.

Contentious matters would be fixed and heard by a judge in the usual manner.