RE MARVIN LESLIE GIENGER

RE MARVIN LESLIE GIENGER

The daughter's application was refused because she failed to discharge the burden of showing special circumstances to displace the wife's prior right: the wife's delay was justified by estate duty clearance and practical steps taken, residence abroad or dealings with the estate absent evidence of misconduct do not disqualify, and the daughter lacked evidence of resources or legal aid support to ensure expeditious, economical administration.

Citation
RE MARVIN LESLIE GIENGER
Parties
Caveator / Applicant to Be Administratrix: Ms. Kris J. Gienger; Person Warning / Respondent / Proposed Administratrix: Madam Chiong Kam Fong; Deceased: Marvin Leslie Gienger
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 January 2007
Case Number
HCCA487/2006
Procedural Posture
Caveat Proceedings for Grant of Letters of Administration (intestacy) / Summons Under R44 Non Contentious Probate Rules and S36 Probate and Administration Ordinance Heard; Decision Reserved and Handed Down
Outcome
Summons dismissed; caveat vacated; letters of administration to be granted to Madam Chiong Kam Fong if entitled; costs ordered against the caveator to be taxed; legal aid costs to be taxed in accordance with Legal Aid Regulations.
Legal Topics
Appointment of Administratrix, Letters of Administration, Caveat, Intestacy, Discretionary Grants, Prior Right Under NCPR, Costs and Legal Aid
Source Language
EN
Probate Succession Estate Administration Tax (estate Duty) Appointment of Administratrix Letters of Administration Caveat Intestacy +3 more

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Parties

Ms. Kris J. Gienger

Caveator / Applicant to Be Administratrix

Madam Chiong Kam Fong

Person Warning / Respondent / Proposed Administratrix

Marvin Leslie Gienger

Deceased

Procedural Posture

Caveat Proceedings for Grant of Letters of Administration (intestacy) / Summons Under R44 Non Contentious Probate Rules and S36 Probate and Administration Ordinance Heard; Decision Reserved and Handed Down

Legal Issues

  1. 1 Whether the daughter has shown special circumstances to displace the wife's prior right to the grant under rule 21 NCPR
  2. 2 Whether the wife's delay in prosecuting the application justified refusing her the grant
  3. 3 Whether the wife's residence outside Hong Kong or past dealings with the estate render her unsuitable

Ratio Decidendi

The daughter's application was refused because she failed to discharge the burden of showing special circumstances to displace the wife's prior right: the wife's delay was justified by estate duty clearance and practical steps taken, residence abroad or dealings with the estate absent evidence of misconduct do not disqualify, and the daughter lacked evidence of resources or legal aid support to ensure expeditious, economical administration.

Court Disposition

Summons dismissed; caveat vacated; letters of administration to be granted to Madam Chiong Kam Fong if entitled; costs ordered against the caveator to be taxed; legal aid costs to be taxed in accordance with Legal Aid Regulations.

Orders

  • Summons filed on 12 July 2006 is dismissed.
  • The caveat filed by Ms. Kris J. Gienger on 28 February 2006 shall cease to have effect.