Probate Law — Court of Appeal dismisses executrix’s appeal to withhold distributing late father’s estate until resolution of pending litigation
The Court of Appeal held that whatever personal/familial disputes between the Plaintiff and the Defendant, they are not relevant to the present appeal; moreover, since the Plaintiff commenced the relevant actions in her personal capacity, she had no right to withhold distributing the estate.
Ching Chung Yin Secina v Ching Chung Kam Andrew
| HKCA 1548
|The Court of Appeal
|The Hon Mr Justice Cheung JA, The Hon Madam Justice Chu V-P and The Hon Mr Justice Au JA
|Andrew Lau, instructed by Hau, Lau, Li & Yeung, acted for the successful Defendant
|Date of Decision:
|18 October 2022
The Court of Appeal dismissed an appeal brought by the Plaintiff executrix against an order requiring her to distribute to the Defendant his share of the deceased’s estate (“Estate”). The appeal was brought on the basis that there is pending litigation between the Plaintiff and the Defendant, and that the Defendant ought not be entitled to his share of the Estate until the pending litigation is resolved.
The Plaintiff is the Defendant’s younger sister. Their father, i.e. the deceased, passed away on 16 July 2017. The deceased’s last will (“Will”) relevantly provides¸ inter alia, that:-
• The Plaintiff and the Defendant be appointed as executors and trustees of the Will;
• In the event of any disagreement or conflicting decisions between the Plaintiff and the Defendant, the decision of the Plaintiff shall prevail; and
• All the residue of the Estate, both real and personal, whatsoever and wheresoever, be held for the Deceased’s children including the Plaintiff and the Defendant for their use and benefit absolutely.
On 23 December 2020, the Plaintiff issued an Originating Summons to seek the Court’s determination of a question arising in the administration of the Estate or in the execution of a trust under Order 85, r.2(2) of the Rules of the High Court (Cap. 4A) (“RHC”). Amongst other things, the Plaintiff sought an order from the Court that the Defendant ought not be entitled to his share of Estate until pending litigation between the Plaintiff and the Defendant, i.e. HCA 385/2021 (previously DCCJ 1583/2020) is resolved: should the Plaintiff be successful in the pending litigation, she would be able to recover more than the Defendant’s share in the Estate.
On 17 August 2021, Wilson Chan J refused to grant the Plaintiff the aforementioned order. In particular, the learned Judge noted that HCA 385/2021 had not been brought by the Plaintiff in her capacity as the executrix of the Estate, and thus, he ordered the Plaintiff to distribute the Estate according to the Will and not to withhold the Defendant’s share in the Estate (“Order”).
Subsequently, the Plaintiff appealed against the Order on various grounds. The thrust of her case is that the learned Judge had erred in finding that HCA 385/2021 was the only pending litigation. In fact, the Plaintiff also commenced a civil action against the Defendant in his capacity as executor of the Estate, i.e. HCA 1643/2021, claiming for damages of up to HKD 4.5 million.
The Defendant’s Case
The Defendant’s case is that in exercising its jurisdiction to give directions on an application under O.85, r.2(2) of the RHC, the Court is essentially engaged solely in determining what ought to be done in the best interests of the Estate and not in determining the rights of adversarial parties. That is not always easy, particularly where, as in this case, the application has been conducted as if it were hostile litigation: Marley v Mutual Security Merchant Bank & Trust Co. Ltd  3 All E.R. 19, at 201d-g (cited in Wu Shuk Chun v Kwong Oi Lin  4 HKLRD 604 at §17).
In the circumstance, the Plaintiff’s appeal ought to be dismissed because:-
• As rightly noted by the learned Judge, HCA 385/2021 had not been brought by the Plaintiff in her capacity as the executrix of the Estate;
• Notwithstanding the above, there is no legal basis for withholding the Defendant’s share in the Estate as if it were some form of “security”; and
• The Plaintiff’s Statement of Claim in the other pending litigation, HCA 1643/2021, had been struck out prior to the hearing of the present appeal.
The Court of Appeal’s Decision
Chu JA (as she then was), writing for the Court, held that:-
• Whatever personal/familial disputes between the Plaintiff and the Defendant, they are not relevant to the present appeal;
• The Will expressly provides that the deceased’s children are all entitled to shares of the Estate;
• Both HCA 385/2021 and HCA 1643/2021 had been commenced by the Plaintiff in her personal capacity, and thus, the Plaintiff had no right to withhold distributing the Deceased’s share in the Estate. The Plaintiff is effectively asking the Court to grant her “security” for her claims against the Defendant, but this request is devoid of any legal basis.
Accordingly, the Plaintiff’s appeal was dismissed, with costs.
Andrew is a Charles Ching Scholar and a Patrick Yu Scholar. He has a broad civil and criminal practice, with experience in areas such as commercial disputes, company/insolvency, equity/trusts, land, probate, family, personal injuries, and public law.
Andrew’s recent cases include Tse Dao Chuen v Cheung Wai Yan  HKDC 399, where he successfully dismissed a claim for the entire beneficial interest in a property, Che Yim Mei v Lei Sio Peng & Anor  HKDC 839, where he successfully convinced the Court, in a first-of-its-kind ruling, to uphold the validity of a notice of severance under section 17B of the Housing Ordinance (Cap. 283), and Re GTI Holdings Ltd  HKCFI 3647, where he successfully sought an immediate winding up order against a Cayman incorporated company notwithstanding restructuring attempts.
Court work aside, Andrew also teaches public law at the Chinese University of Hong Kong, and media law at the Hong Kong Baptist University.
Visit Andrew’s profile for more details.
This article was first published on 3 November 2022.
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 photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.