YUNG SIU CHEE MARGARET AND OTHERS v. CHOY CHING WA FIONNE AND OTHERS

YUNG SIU CHEE MARGARET AND OTHERS v. CHOY CHING WA FIONNE AND OTHERS

The court held that substantial weight must be given to the testator's express provision for remuneration in the will; the executrices failed to discharge the onus of showing the will's fixed remuneration was inadequate or that special circumstances existed. Consequently the court would not exercise its discretion to grant additional remuneration to Fionne Choy beyond the amount provided in the will. Further, because the executrices did not produce pre-litigation advice or disclose strengths and weaknesses, the court would not have authorized the PRC proceedings and would not allow their costs to be borne by the estate.

Citation
[2019] HKCFI 1767
Parties
Executrix: Fionne Choy (Choy Ching Wa Fionne); Co Executrices of the Estate: The four co-executrices; Defendant in PRC Proceedings: Billy Yung; Estate/subject of Proceedings: Estate of Yung Yau; Beneficiaries: Beneficiaries (unnamed in excerpt)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 July 2019
Case Number
HCMP1682/2016
Procedural Posture
High Court Miscellaneous Probate/directions Proceedings / Directions/substantive Hearing to Determine Executor Remuneration, Removal and Litigation Authorisation Issues
Outcome
Court refused to allow additional remuneration to Fionne Choy beyond the sum fixed in the will; court indicated it would not allow costs of the PRC proceedings to be paid from the estate on the material before it; other contested issues to be addressed at substantive hearing (including cross-examination on NY Loan)
Legal Topics
Executor Remuneration, Removal of Executors, Beddoe/leave to Litigate, Recovery of Litigation Costs From Estate, Duty to Render Accounts, Cross Examination in Probate Disputes
Source Language
EN
Trusts and Estates Probate Civil Procedure Equity Executor Remuneration Removal of Executors Beddoe/leave to Litigate Recovery of Litigation Costs From Estate +2 more

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Parties

Fionne Choy (Choy Ching Wa Fionne)

Executrix

The four co-executrices

Co Executrices of the Estate

Billy Yung

Defendant in PRC Proceedings

Estate of Yung Yau

Estate/subject of Proceedings

Beneficiaries (unnamed in excerpt)

Beneficiaries

Procedural Posture

High Court Miscellaneous Probate/directions Proceedings / Directions/substantive Hearing to Determine Executor Remuneration, Removal and Litigation Authorisation Issues

Legal Issues

  1. 1 Whether Fionne Choy is entitled to additional remuneration (HK$50,000 per year or otherwise) beyond the amount fixed in the will
  2. 2 Whether the four executrices should be removed
  3. 3 Whether costs of PRC proceedings commenced by the executrices may be paid out of the estate

Ratio Decidendi

The court held that substantial weight must be given to the testator's express provision for remuneration in the will; the executrices failed to discharge the onus of showing the will's fixed remuneration was inadequate or that special circumstances existed. Consequently the court would not exercise its discretion to grant additional remuneration to Fionne Choy beyond the amount provided in the will. Further, because the executrices did not produce pre-litigation advice or disclose strengths and weaknesses, the court would not have authorized the PRC proceedings and would not allow their costs to be borne by the estate.

Court Disposition

Court refused to allow additional remuneration to Fionne Choy beyond the sum fixed in the will; court indicated it would not allow costs of the PRC proceedings to be paid from the estate on the material before it; other contested issues to be addressed at substantive hearing (including cross-examination on NY Loan)

Orders

  • Declined to exercise discretion to award additional remuneration to Fionne Choy beyond the will
  • Costs of the PRC proceedings will not be allowed out of the estate on the material before the court (no Beddoe authorization)