LILY DOROTHY CHAN (personal representative of the estate of CHAN Michael Yiu-Hee) AND ANOTHER v. CHAN ORLANDO YIU-KUI (sole surviving executor of the estate of Madam Chan Lam Yat Wah, deceased)

LILY DOROTHY CHAN (personal representative of the estate of CHAN Michael Yiu-Hee) AND ANOTHER v. CHAN ORLANDO YIU-KUI (sole surviving executor of the estate of Madam Chan Lam Yat Wah, deceased)

Orlando failed to comply fully and timely with the 21.09.2017 order to exhibit a true and perfect inventory and supporting financial records; there were sufficient concerns of conflict of interest, unexplained loans, director payments and unjustified delay in administration and distribution to satisfy the court under s33(3) P&A Ordinance that removal and replacement by a professional accountant were necessary for due and proper administration; removal ordered to take effect upon appointment, with consequential vesting orders then to follow and costs awarded against Orlando personally.

Citation
[2020] HKCFI 388
Parties
1st Plaintiff (personal Representative of the Estate of CHAN Michael Yiu Hee): Lily Dorothy Chan; 2nd Plaintiff: Rosalind Chan Chuk Man; Defendant (sole Surviving Executor of the Estate of Madam Chan Lam Yat Wah, Deceased): Chan Orlando Yiu-Kui
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 March 2020
Case Number
HCMP1043/2018
Procedural Posture
Originating Summons Under Section 33(3) Probate and Administration Ordinance (application to Remove Executor) / Judgment After Contested Hearing
Outcome
Application granted in part: Orlando removed as sole executor and to be replaced by a professional accountant; removal to take effect upon appointment of professional accountant; costs awarded against Orlando personally
Legal Topics
Removal of Executor, Account of Estate, Breach of Fiduciary Duty, Disclosure and Production of Financial Records, Conflict of Interest, Costs
Source Language
EN
Probate Trusts Estate Administration Company Law Civil Procedure Removal of Executor Account of Estate Breach of Fiduciary Duty +3 more

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Parties

Lily Dorothy Chan

1st Plaintiff (personal Representative of the Estate of CHAN Michael Yiu Hee)

Rosalind Chan Chuk Man

2nd Plaintiff

Chan Orlando Yiu-Kui

Defendant (sole Surviving Executor of the Estate of Madam Chan Lam Yat Wah, Deceased)

Procedural Posture

Originating Summons Under Section 33(3) Probate and Administration Ordinance (application to Remove Executor) / Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the executor complied with court order to exhibit a true and perfect inventory and supporting financial records
  2. 2 Whether there is sufficient evidence of misappropriation, conversion or conflict of interest to warrant removal
  3. 3 Whether delay in administration and distribution is unjustifiable

Ratio Decidendi

Orlando failed to comply fully and timely with the 21.09.2017 order to exhibit a true and perfect inventory and supporting financial records; there were sufficient concerns of conflict of interest, unexplained loans, director payments and unjustified delay in administration and distribution to satisfy the court under s33(3) P&A Ordinance that removal and replacement by a professional accountant were necessary for due and proper administration; removal ordered to take effect upon appointment, with consequential vesting orders then to follow and costs awarded against Orlando personally.

Court Disposition

Application granted in part: Orlando removed as sole executor and to be replaced by a professional accountant; removal to take effect upon appointment of professional accountant; costs awarded against Orlando personally

Orders

  • Orlando Chan Orlando Yiu-Kui is removed as sole executor of the estate of Madam Chan Lam Yat Wah; removal to take effect upon appointment of a professional accountant as executor and attendant vesting orders to be made upon such appointment
  • Leave granted for Orlando to file an affidavit in response to the Affidavit of Fitness filed by Ms Hung within 21 days and for plaintiffs to file any reply affidavit within 14 days; matter to be dealt with on paper unless directed otherwise