FNG v. BCJ

FNG v. BCJ

The enduring power of attorney was revoked by the donor's death and therefore there was no present attorney able or authorised to take the prospective steps required by the Order (to instruct and remunerate an Auditor from the Live Estate); implementation of the Order would improperly interfere with administration...

Source-derived case information.

Citation
[2019] HKCFI 3089
Parties
Plaintiff: FNG; Defendant: BCJ
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 December 2019
Case Number
HCMP776/2019
Procedural Posture
Enduring Powers of Attorney Section 11(1) Application / Decision on Stay Following Death of Donor
Outcome
Order stayed by reason of the death of the donor; liberty to apply preserved; costs: no order generally but plaintiff to pay half of the costs of the Hearing to be taxed if not agreed.
Legal Topics
Enduring Power of Attorney, Revocation by Death, Production and Auditing of Accounts, Jurisdictional Limits, Costs
Source Language
en
Trusts and Fiduciary Duties Probate and Administration Mental Health Law Civil Procedure Enduring Power of Attorney Revocation by Death Production and Auditing of Accounts Jurisdictional Limits +1 more

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Parties

FNG

Plaintiff

BCJ

Defendant

Procedural Posture

Enduring Powers of Attorney Section 11(1) Application / Decision on Stay Following Death of Donor

Legal Issues

  1. 1 Whether an order under section 11(1)(a) of the Enduring Powers of Attorney Ordinance remains enforceable after the donor's death
  2. 2 Whether a former attorney can implement prospective steps in an order (appoint/pay an auditor) once the enduring power is revoked by death
  3. 3 Whether the court has residual jurisdiction to require production of accounts by a former attorney after death of the donor

Ratio Decidendi

The enduring power of attorney was revoked by the donor's death and therefore there was no present attorney able or authorised to take the prospective steps required by the Order (to instruct and remunerate an Auditor from the Live Estate); implementation of the Order would improperly interfere with administration of the Death Estate, which is for the executors; accordingly the Order must be stayed and any accounting or redress for breaches by the former attorney falls to the executors or other probate processes, not enforcement of that Section 11(1)(a) Order after death.

Court Disposition

Order stayed by reason of the death of the donor; liberty to apply preserved; costs: no order generally but plaintiff to pay half of the costs of the Hearing to be taxed if not agreed.

Orders

  • The Order made pursuant to section 11(1)(a) is stayed by reason of the death of the donor
  • Costs nisi: plaintiff to pay defendant half of the costs of the Hearing to be taxed if not agreed; otherwise no order as to costs