MAK NGUN TAI AND OTHERS v. FUNG MING IP AND OTHERS

MAK NGUN TAI AND OTHERS v. FUNG MING IP AND OTHERS

Given the undisputed circumstances including psychiatric evidence of cognitive impairment, large unexplained disposals of assets after September 2011 and risk of dissipation, it was necessary and expedient to appoint an independent administrator pendente lite to inquire into inter vivos dispositions; by contrast s10 PAO does not vest the estate in the Official Administrator where a will exists (even if contested), therefore the OA cannot be directed to perform the contentious investigative and litigation functions sought and the claim against the OA in specified paragraphs and schedules is struck out.

Citation
MAK NGUN TAI AND OTHERS v. FUNG MING IP AND OTHERS
Parties
1st Plaintiff: MAK NGUN TAI; 2nd Plaintiff: MAK LAI PING; 3rd Plaintiff: MAK MEI WA; 1st Defendant: FUNG MING IP; 2nd Defendant: MAK NGAN LAI; 3rd Defendant: THE OFFICIAL ADMINISTRATOR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 2016
Case Number
HCAP37/2015
Procedural Posture
Probate Action / Interlocutory Applications for Administration Pendente Lite, Joinder of Official Administrator and Strike Out Applications
Outcome
Application for administration pendente lite granted in principle; Official Administrator application dismissed; Strikeout application allowed in part
Legal Topics
Administrator Pendente Lite, Official Administrator, Validity of Wills, Undue Influence, Mental Capacity, Asset Tracing, Strike Out
Source Language
EN
Probate Succession Civil Procedure Equity Property Law Administrator Pendente Lite Official Administrator Validity of Wills +4 more

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Parties

MAK NGUN TAI

1st Plaintiff

MAK LAI PING

2nd Plaintiff

MAK MEI WA

3rd Plaintiff

FUNG MING IP

1st Defendant

MAK NGAN LAI

2nd Defendant

THE OFFICIAL ADMINISTRATOR

3rd Defendant

Procedural Posture

Probate Action / Interlocutory Applications for Administration Pendente Lite, Joinder of Official Administrator and Strike Out Applications

Legal Issues

  1. 1 Whether an administrator pendente lite should be appointed under s40 PAO to investigate inter vivos dispositions and preserve the estate
  2. 2 Whether the Official Administrator may be joined under ss9 and 10 PAO and required to take contentious preservation and litigation steps when a will exists but its validity is contested
  3. 3 Whether parts of the Statement of Claim against the OA should be struck out

Ratio Decidendi

Given the undisputed circumstances including psychiatric evidence of cognitive impairment, large unexplained disposals of assets after September 2011 and risk of dissipation, it was necessary and expedient to appoint an independent administrator pendente lite to inquire into inter vivos dispositions; by contrast s10 PAO does not vest the estate in the Official Administrator where a will exists (even if contested), therefore the OA cannot be directed to perform the contentious investigative and litigation functions sought and the claim against the OA in specified paragraphs and schedules is struck out.

Court Disposition

Application for administration pendente lite granted in principle; Official Administrator application dismissed; Strikeout application allowed in part

Orders

  • Paragraphs 1 and 44 to 56 of, and Schedules 1 and 2 to, the Statement of Claim are struck out against the Official Administrator
  • Plaintiffs to pay the Official Administrator his costs of the action including costs occasioned by the OA Application and the Strikeout Application to be assessed summarily