VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

A foreign executor may commence proceedings in Hong Kong in his capacity as executor before obtaining a Hong Kong grant because an executor's title derives from the will rather than the grant; however a Hong Kong grant must be obtained before proving title or collecting assets in Hong Kong, and the correct exercise...

Source-derived case information.

Citation
VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT
Parties
Plaintiff (executor): VIDHYA NATIVIVAT; Plaintiff (executor): VIROJ NATIVIVAT; Plaintiff (executor): VINIDA WONGJARIYAKUL; Defendant (appellant): VITOON NATIVIVAT
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
6 September 2013
Case Number
CACV23/2013
Procedural Posture
Civil Appeal (court of Appeal) / On Appeal From HCA No.1376 of 2011; Hearing and Judgment on Appeal (appeal Dismissed)
Legal Topics
Executor Capacity and Standing, Foreign Executor Suing in Hong Kong, Grant of Probate (hong Kong), Stay of Proceedings Pending Probate, Limitation Period for Estate Claims
Source Language
en
Probate Law Conflict of Laws Civil Procedure Limitation Law Equity and Trusts Executor Capacity and Standing Foreign Executor Suing in Hong Kong Grant of Probate (hong Kong) +2 more

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Parties

VIDHYA NATIVIVAT

Plaintiff (executor)

VIROJ NATIVIVAT

Plaintiff (executor)

VINIDA WONGJARIYAKUL

Plaintiff (executor)

VITOON NATIVIVAT

Defendant (appellant)

Procedural Posture

Civil Appeal (court of Appeal) / On Appeal From HCA No.1376 of 2011; Hearing and Judgment on Appeal (appeal Dismissed)

Legal Issues

  1. 1 Whether a foreign executor may commence proceedings in Hong Kong in his capacity as executor before obtaining a Hong Kong grant of probate
  2. 2 Whether the Judge erred in refusing to strike out the Plaintiffs' claim and in ordering a stay pending grant
  3. 3 Whether s16 of the Limitation Ordinance should be construed to treat a foreign executor as an administrator for extension of limitation

Ratio Decidendi

A foreign executor may commence proceedings in Hong Kong in his capacity as executor before obtaining a Hong Kong grant because an executor's title derives from the will rather than the grant; however a Hong Kong grant must be obtained before proving title or collecting assets in Hong Kong, and the correct exercise of the court's discretion in the present facts is to refuse striking out and to stay proceedings pending issuance of a Hong Kong grant.