RE HO NAI CHEW

RE HO NAI CHEW

Section 40(1) PAO is confined to situations where a probate action or suit is pending in court; non-contentious registry applications or caveat/warning do not constitute lis pendens and therefore do not empower the court to appoint an administrator pendente lite under s40(1). The court lacked jurisdiction to entertain SOJ's application and SOJ, having withdrawn the summons, must pay PWs' costs, to be reimbursed from the 1/6 of the estate allocated to the charity fund.

Citation
RE HO NAI CHEW
Parties
Deceased: UOCN duit Road, Hong Kong, Married Man; Caveator/protector of Charity: Secretary for Justice; Applicants/persons Warning: Persons Warning (PWs)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 August 2009
Case Number
HCCA1035/2009
Procedural Posture
Non Contentious Probate (rule 44) / Determination on Summons for Administrator Pendente Lite and Costs
Outcome
Summons for appointment of administrator pendente lite dismissed for want of jurisdiction; costs awarded to Persons Warning.
Legal Topics
Administrator Pendente Lite, Caveat, Letters of Administration With Will Annexed, Section 40(1) Probate and Administration Ordinance, Jurisdiction to Appoint Administrator Pending Grant, Costs Assessment
Source Language
EN
Probate Civil Procedure Trusts and Charities Costs Administrator Pendente Lite Caveat Letters of Administration With Will Annexed Section 40(1) Probate and Administration Ordinance +2 more

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Parties

UOCN duit Road, Hong Kong, Married Man

Deceased

Secretary for Justice

Caveator/protector of Charity

Persons Warning (PWs)

Applicants/persons Warning

Procedural Posture

Non Contentious Probate (rule 44) / Determination on Summons for Administrator Pendente Lite and Costs

Legal Issues

  1. 1 Whether an application for an administrator pendente lite can be made without a probate claim pending in court under section 40(1) PAO
  2. 2 Whether non-contentious probate proceedings fall within "legal proceedings" in section 40(1) PAO
  3. 3 Liability for costs following withdrawal of summons

Ratio Decidendi

Section 40(1) PAO is confined to situations where a probate action or suit is pending in court; non-contentious registry applications or caveat/warning do not constitute lis pendens and therefore do not empower the court to appoint an administrator pendente lite under s40(1). The court lacked jurisdiction to entertain SOJ's application and SOJ, having withdrawn the summons, must pay PWs' costs, to be reimbursed from the 1/6 of the estate allocated to the charity fund.

Court Disposition

Summons for appointment of administrator pendente lite dismissed for want of jurisdiction; costs awarded to Persons Warning.

Orders

  • SOJ shall pay the PWs' costs of the summons, to be taxed if not agreed (including costs reserved), together with certificate for counsel.
  • Any such costs paid to the PWs by SOJ are to be reimbursed from the monies distributable to the charity fund under the will (1/6 share).