YU HONG PING AND ANOTHER v. KENNETH YUEN

YU HONG PING AND ANOTHER v. KENNETH YUEN

An application under Section 33(3) PAO for removal of a personal representative is an action (not part of non-contentious probate) but the court may by direction under Order 28 Rule 3A adjourn the matter to chambers where a probate master, deriving jurisdiction via Order 32 Rule 11, can consider and, where appropriate and with proper consents and documentation, determine the application on papers; the court must ensure the statutory criteria for removal are satisfied.

Citation
YU HONG PING AND ANOTHER v. KENNETH YUEN
Parties
Plaintiff: 1st Plaintiff; Plaintiff: 2nd Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 August 2009
Case Number
HCMP1104/2009
Procedural Posture
Probate Application Under Probate and Administration Ordinance Section 33(3) / Application by Originating Summons; Adjourned to Chambers for Consideration by Probate Master Following Judgment
Outcome
Matter adjourned to chambers for consideration by a probate master; directions given for lodgement of original grant and filing of consents and supporting documents; no contested opposition made
Legal Topics
Removal of Executor, Non Contentious Probate Practice, Jurisdiction of Master, Originating Summons, Procedure to Hear on Papers
Source Language
EN
Probate Civil Procedure Trusts and Estates Removal of Executor Non Contentious Probate Practice Jurisdiction of Master Originating Summons Procedure to Hear on Papers

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Parties

1st Plaintiff

Plaintiff

2nd Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Probate Application Under Probate and Administration Ordinance Section 33(3) / Application by Originating Summons; Adjourned to Chambers for Consideration by Probate Master Following Judgment

Legal Issues

  1. 1 Whether an application under Section 33(3) PAO for removal of a personal representative is within non-contentious probate or must be commenced as an action
  2. 2 Whether a master has jurisdiction to deal with removal/substitution of personal representatives and whether the matter can be heard in chambers or on papers
  3. 3 What statutory criteria the court must be satisfied with before removing a personal representative

Ratio Decidendi

An application under Section 33(3) PAO for removal of a personal representative is an action (not part of non-contentious probate) but the court may by direction under Order 28 Rule 3A adjourn the matter to chambers where a probate master, deriving jurisdiction via Order 32 Rule 11, can consider and, where appropriate and with proper consents and documentation, determine the application on papers; the court must ensure the statutory criteria for removal are satisfied.

Court Disposition

Matter adjourned to chambers for consideration by a probate master; directions given for lodgement of original grant and filing of consents and supporting documents; no contested opposition made

Orders

  • Matter adjourned to chambers and to be considered by a probate master under Order 28 Rule 3A
  • Personal representative must lodge the original grant in court pending outcome of the application