Wearing Two Hats: Removing Administrators for Conflict of Interest
Where a person dies intestate, the administration of the estate almost invariably falls to a family member. That is convenient and inexpensive, but it carries an obvious risk: an administrator who is also a beneficiary, an occupier of estate property, or a creditor of the estate holds personal interests that may not sit comfortably alongside the duties of the office. Beneficiaries who find the administration stalled, unexplained or unaccounted for are often unsure whether the court will intervene, and on what basis.
In this article, Ross Yuen addresses (1) the statutory power of removal and the governing principles; and (2) conflict of interest where the administrator is a creditor of the estate or occupies estate property.
The Statutory Power and the Governing Principles
The Court’s power to remove a personal representative is conferred by section 33(3) of the Probate and Administration Ordinance (Cap. 10) (“PAO”):
“The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so required, suspend or remove an executor or administrator and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”
The applicable principles were recently distilled by DHCJ Ng Jern Fei KC in Re Estate of Poon Siu Chun (Deceased) [2026] 1 HKLRD 1069 at [20]. In summary:
(a) The overriding consideration is the interest and welfare of the beneficiaries, and what is necessary or required for the due and proper administration of the estate.
(b) Removal is a discretionary exercise involving an assessment and value judgment on all the circumstances, including the size of the estate and the nature of the assets being administered.
(c) Not every mistake, neglect of duty or inaccuracy will justify removal. The acts or omissions must endanger the trust property, or show a want of proper capacity to execute the duties, or a want of reasonable fidelity.
(d) Specific wrongdoing, misconduct or fault need not be established, although it is relevant if proved. That the administration could have been done better is not, of itself, sufficient.
(e) The duty to render a full and proper account when called upon is fundamental, and a failure to do so may in appropriate circumstances justify removal.
(f) Substantial delay in completing the administration may constitute a ground for removal, one of the key objectives being distribution as expeditiously and economically as possible.
(g) Hostility between administrator and beneficiaries is not a ground for removal unless the breakdown leads to the administration coming to a standstill, or makes it difficult or impossible to complete. Where the friction is grounded on the manner in which the estate has been administered, it is certainly not to be disregarded.
Two features of this jurisdiction are of considerable practical importance. First, it is not a fault-finding exercise: Li Choi Ping & Anor v Xie Yanxian [2022] HKCFI 3042 at [6]. Secondly, the Court is not required to resolve the parties’ disputed issues of fact. In Li Choi Ping at [12], where the administratrix asserted a loan owed to her by the estate, the Court held that whether the alleged loan existed was not an issue capable of summary determination on the removal application; the question was whether her personal interest in being paid ahead of her share of the residue conflicted with her duty to distribute the estate fairly. The same approach was taken in Shih Chia Cheong v Li Liu Zhu (HCMP 1891/2011, unrep., 5 November 2012) at [12].
That distinction is what makes a removal application a realistic remedy. An applicant does not have to prove misappropriation, or win the underlying accounting dispute, before the Court will act.
Conflict of Interest: The Administrator as Creditor of the Estate
It is well established that conflict of interest may suffice on its own. In Thian Sum v Yung Shui Tong [2019] HKCFI 2867 at [16]–[17], the administratrix was removed solely because she had made a claim against the estate. In Ang Jimmy Tjun Min v Ang Eileen & Anor [2023] HKCFI 3120 the Court confirmed that a personal representative may be removed on the basis of conflict alone; and in Tsao Chi Ching v Tsao Lung May [2013] 2 HKLRD 301 at [47]–[52] a daughter asserting herself to be a major creditor was held unsuitable for appointment for that reason.
The reason is that the conflict is a serious one when an administrator is wearing two hats: one owing a duty as administrator to investigate whether the debt was truly due (and, if not, to resist it), and one having a personal interest as creditor in being paid and in suing to recover if the claim were disputed.
An arguable exception is the case where the executor was put in the position of conflict by the testator, and where family members act as executors potential conflict of interest would not be such as to require their removal because the deceased can be expected to have known of the relationships and circumstances during his lifetime which might create or lead to any expectation of any such conflict, see Kwok Wing Yan v Kwok Kam Wing [2023] HKCFI 2510 at [110]–[113]. However, the exception has its obvious limit: it cannot be applied to conduct or circumstances arising since the death, or to matters of which the testator could not have been expected to have knowledge: Tsaknis v Lilburne [2010] WASC 152 at [61]; Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd ed.) at [53-20].
In the case where the administrator is occupying the property of the estate, two related principles are germane. First, the self-dealing rule is strict: a trustee must not place himself in a position of conflict or possible conflict, and the Court will not ordinarily inquire whether he in fact took advantage of it (Lewin on Trusts (20th ed.) at [46-008], cited with approval in Ng, Rose Kai Ching v Liang Yum Shing Howard [2023] HKCFI 1867 at [129]). Secondly, on quantum, mesne profits are assessed by reference to the use the occupier has enjoyed under the “user principle”: Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406 at 1416; One-Step (Support) Ltd v Morris-Garner [2019] AC 649 at [30]. It is no answer that the owner would not have used the property in any event.
Practical Takeaways
For beneficiaries:
(a) Build a paper trail: Formally request accounts and documents in writing. The administrator’s response—or lack thereof—is key evidence.
(b) Focus on conflict: Frame your case around deadlock and a lack of accounting. You do not need to prove bad faith or resolve factual disputes.
(c) Prove the standstill: Show evidence of unanswered emails, deadlocked decisions, delayed distributions, or changing stories.
(d) Prepare the alternative: Secure support from other beneficiaries in writing, select a replacement administrator in advance, and show that replacement costs are reasonable for the estate’s size.
For administrators:
(a) Provide accounts immediately: Supply proper and timely financial records. Last-minute schedules created just for litigation look suspicious.
(b) Address conflicts directly: If you owe or are owed money by the estate—or live in estate property—acknowledge the conflict. Pay fair market rent, get professional valuations, or step aside voluntarily to retain control over the process.
(c) Keep finances clean and clear: Never mix estate, company, and personal money, and never give inconsistent explanations for transactions.
(d) Fix issues early: The Court may well be reluctant to remove an administrator who wishes to continue, but the leniency would disappear if the estate reaches a complete standstill.
Ross Yuen (with Hannah Tang) recently acted for the plaintiff in Choi Lam Fat Luke v Choi Sau Ying Jenny & Anor [2026] HKCFI 3999 in the application for removal of administrators.
Authored by Ross Yuen.
Ross Yuen
Ross has his practice mainly in property law (including Chancery, Trust and Probate) and commercial law. He regularly acts for land owners/developers in adverse possession cases. He also frequently advises and appears on behalf of minority owners in compulsory sale applications, and on occasion, extends his services to majority owners. Advising on other land related matters such as conveyancing, building management and tenancy is also his regular practice.
He has been involved in some leading authorities on land and commercial disputes such as: Monat Investment Ltd v. All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2023] HKLRD 1311 and [2020] 4 HKLRD 330 (adopting Patel v. Mirza on illegality in the context of unauthorized building works in adverse possession); and Gain Wealth Global Credit & Investment Ltd v Chan Suk Fong [2020] 4 HKLRD 831 (interpretation of the Money Lenders Ordinance).
He has ample experience in working with land surveyor, building surveyor, structural engineer, authorized person and valuer. He is a Chartered Financial Analyst of the CFA Institute. Benefitting from his diverse background, he is recently expanding his practice to construction law and Building (Planning) Regulations that involve multiple expert disciplines.
Ross completed the PCLL from the University of Hong Kong with distinction in 2007 and was awarded the Association of China-Appointed Attesting Officers Scholarship for PCLL Students. Currently, he serves as a tutor and assessor of the PCLL civil advocacy course at the University of Hong Kong. He is an accredited mediator of the Hong Kong International Arbitration Centre.
Visit Ross’s profile for more details.
This article was first published on 11 August 2026.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.