THE BANK OF NEW YORK v. ADRIENNE MARSH LEFKOWITZ

THE BANK OF NEW YORK v. ADRIENNE MARSH LEFKOWITZ

On the facts the court exercised its discretion under s.36 to permit transfer of US$4.7m to the US administrators: the transfer did not infringe s.42 because the Hong Kong administration remained under officers appointed by and under control of the Hong Kong court and did not enable the plaintiff to act as Hong Kong executor; it did not constitute prohibited distribution under s.40(2) because it was a reasonable transfer to further administration abroad while leaving sufficient funds in Hong Kong to protect the defendant's claims; the application was not premature given the state of administration and no demonstrated prejudice.

Citation
THE BANK OF NEW YORK v. ADRIENNE MARSH LEFKOWITZ
Parties
Plaintiff (permanent Executor and Trustee; Applicants Via Administrators Pendente Lite): The Bank of New York; Defendant (beneficiary and Former Executrix Removed in Us): Adrienne Marsh Lefkowitz; Deceased: Nicholas V. Marsh (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 November 1993
Case Number
HCAP5/1991
Procedural Posture
Probate and Administration (administration Pendente Lite) / Interim Application Under S.36 for Transfer of Assets Pendente Lite (hearing in Chambers)
Outcome
Application granted in part; transfer of US$4.7m to United States administrators permitted.
Legal Topics
Administration Pendente Lite, Transfer of Assets Across Jurisdictions, Jurisdiction to Permit Transfer, Section 42 Probate and Administration Ordinance, Section 40(2) Probate and Administration Ordinance, Prejudice to Beneficiaries
Source Language
EN
Probate Trusts Estate Administration Private International Law Administration Pendente Lite Transfer of Assets Across Jurisdictions Jurisdiction to Permit Transfer Section 42 Probate and Administration Ordinance +2 more

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Parties

The Bank of New York

Plaintiff (permanent Executor and Trustee; Applicants Via Administrators Pendente Lite)

Adrienne Marsh Lefkowitz

Defendant (beneficiary and Former Executrix Removed in Us)

Nicholas V. Marsh (deceased)

Deceased

Procedural Posture

Probate and Administration (administration Pendente Lite) / Interim Application Under S.36 for Transfer of Assets Pendente Lite (hearing in Chambers)

Legal Issues

  1. 1 Whether administrators pendente lite may transfer estate funds to foreign (US) administrators
  2. 2 Whether the proposed transfer infringes s.42 (prohibition on acting as executor where grant exists)
  3. 3 Whether the transfer amounts to an unlawful distribution contrary to s.40(2)

Ratio Decidendi

On the facts the court exercised its discretion under s.36 to permit transfer of US$4.7m to the US administrators: the transfer did not infringe s.42 because the Hong Kong administration remained under officers appointed by and under control of the Hong Kong court and did not enable the plaintiff to act as Hong Kong executor; it did not constitute prohibited distribution under s.40(2) because it was a reasonable transfer to further administration abroad while leaving sufficient funds in Hong Kong to protect the defendant's claims; the application was not premature given the state of administration and no demonstrated prejudice.

Court Disposition

Application granted in part; transfer of US$4.7m to United States administrators permitted.

Orders

  • Administrators pendente lite are permitted to transfer US$4.7m to the United States administrators.
  • Sufficient funds to be retained in Hong Kong to prevent prejudice to the defendant's claims and rights.