WU MAN SHAN v. THE REGISTRAR OF PROBATE

WU MAN SHAN v. THE REGISTRAR OF PROBATE

Rule 55 of the English Non-Contentious Probate Rules applies in Hong Kong by virtue of s72(2) PAO; accordingly rectification under s23A WO may be effected by the Registrar within a grant application if one exists, but where no grant application has been filed the proper route is ex-parte MP proceedings before a Master (or Judge as appropriate); a clerical, trivial error which causes no prejudice can be rectified ex-parte and the Registrar need not be joined as respondent.

Citation
WU MAN SHAN v. THE REGISTRAR OF PROBATE
Parties
Applicant (executor/trustee): Wu Man Shan; Respondent (named): The Registrar of Probate
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 February 2006
Case Number
HCMP2683/2005
Procedural Posture
Miscellaneous Proceedings (non Contentious Probate) Rectification of Will Under S23 a Wills Ordinance / Decision by Master in Chambers on Ex Parte Originating Summons (order Delivered)
Outcome
Application granted in part; will rectified pursuant to s23A(1) Wills Ordinance; leave to amend originating summons to remove Registrar as respondent; no order as to costs.
Legal Topics
Rectification of Will, Section 23 a Wills Ordinance, Procedural Route for Rectification, Non Contentious Probate Rules, Ex Parte Applications, Clerical Error in Will
Source Language
EN
Wills and Probate Civil Procedure Rectification of Will Section 23 a Wills Ordinance Procedural Route for Rectification Non Contentious Probate Rules Ex Parte Applications Clerical Error in Will

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Parties

Wu Man Shan

Applicant (executor/trustee)

The Registrar of Probate

Respondent (named)

Procedural Posture

Miscellaneous Proceedings (non Contentious Probate) Rectification of Will Under S23 a Wills Ordinance / Decision by Master in Chambers on Ex Parte Originating Summons (order Delivered)

Legal Issues

  1. 1 Whether rectification under s23A Wills Ordinance should follow Registrar procedure or be dealt with by ex-parte MP proceedings before a Master or Judge
  2. 2 Whether English Non-Contentious Probate Rule 55 applies in Hong Kong by virtue of s72(2) Probate and Administration Ordinance
  3. 3 Whether a clerical error may be corrected ex-parte and whether the Registrar must be joined as respondent

Ratio Decidendi

Rule 55 of the English Non-Contentious Probate Rules applies in Hong Kong by virtue of s72(2) PAO; accordingly rectification under s23A WO may be effected by the Registrar within a grant application if one exists, but where no grant application has been filed the proper route is ex-parte MP proceedings before a Master (or Judge as appropriate); a clerical, trivial error which causes no prejudice can be rectified ex-parte and the Registrar need not be joined as respondent.

Court Disposition

Application granted in part; will rectified pursuant to s23A(1) Wills Ordinance; leave to amend originating summons to remove Registrar as respondent; no order as to costs.

Orders

  • Leave granted to applicant to amend the Originating Summons to delete references to the Registrar of Probate as Respondent
  • Pursuant to s23A(1) Wills Ordinance the will of the deceased is rectified to remove the clerical Chinese reference as specified in the application