RE WONG FUNG FONG and TANG TIM FUK, the co-administrators of the estate of LIN FAT WONG also known as WONG LIN FAT, the deceased

RE WONG FUNG FONG and TANG TIM FUK, the co-administrators of the estate of LIN FAT WONG also known as WONG LIN FAT, the deceased

Given exhaustive and credible tracing efforts over 25 years, the surrender of keys by MMK, the small size of the residuary estate, the low likelihood that further inquiries would yield a claimant and the prejudice to known beneficiaries from indefinite delay, the court exercised its supervisory jurisdiction to grant a Benjamin Order authorizing distribution on the footing that MMK died intestate and without issue and refused the alternative to require payment into court.

Citation
[2024] HKCFI 2686
Parties
Applicant; Co Administrator of the Estate: Wong Fung Fong; Applicant; Co Administrator of the Estate: Tang Tim Fuk; Deceased: Lin Fat Wong (deceased); Missing Prospective Beneficiary: Man Mei Kam
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 September 2024
Case Number
HCMP1750/2024
Procedural Posture
Probate (benjamin Order Application) / Ex Parte Originating Summons — Decision at First Instance
Outcome
Benjamin Order granted; applicants authorized to administer and distribute the estate on the footing that Man Mei Kam died intestate and without issue; alternative proposal to pay HK$1,110,022 into court declined; costs to be paid out of the estate and taxed on a trustee basis.
Legal Topics
Benjamin Order, Missing Beneficiary, Administration and Distribution of Estate, Payment Into Court, Adequacy of Beneficiary Tracing, Section 62 Trustee Ordinance
Source Language
EN
Probate Trusts and Estates Civil Procedure Trustee Law Benjamin Order Missing Beneficiary Administration and Distribution of Estate Payment Into Court +2 more

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Parties

Wong Fung Fong

Applicant; Co Administrator of the Estate

Tang Tim Fuk

Applicant; Co Administrator of the Estate

Lin Fat Wong (deceased)

Deceased

Man Mei Kam

Missing Prospective Beneficiary

Procedural Posture

Probate (benjamin Order Application) / Ex Parte Originating Summons — Decision at First Instance

Legal Issues

  1. 1 Whether a Benjamin Order should be granted to permit distribution on the footing that the missing beneficiary died intestate without issue
  2. 2 Whether applicants have taken sufficient inquiries to trace the missing beneficiary
  3. 3 Whether payment into court under s62 Trustee Ordinance is required as an alternative

Ratio Decidendi

Given exhaustive and credible tracing efforts over 25 years, the surrender of keys by MMK, the small size of the residuary estate, the low likelihood that further inquiries would yield a claimant and the prejudice to known beneficiaries from indefinite delay, the court exercised its supervisory jurisdiction to grant a Benjamin Order authorizing distribution on the footing that MMK died intestate and without issue and refused the alternative to require payment into court.

Court Disposition

Benjamin Order granted; applicants authorized to administer and distribute the estate on the footing that Man Mei Kam died intestate and without issue; alternative proposal to pay HK$1,110,022 into court declined; costs to be paid out of the estate and taxed on a trustee basis.

Orders

  • Applicants authorised to administer and distribute the estate of the deceased on the footing that Man Mei Kam died intestate and without issue
  • Order refusing the alternative relief to pay HK$1,110,022 into court as unnecessary and prejudicial