LU SEN MOON HWA v. LU CHUNG CHUN

LU SEN MOON HWA v. LU CHUNG CHUN

The court held that the Mother, as the surviving spouse and likely personal representative with the highest priority to apply for administration, had the best legal claim to possession of the deceased's body; there was a high degree of assurance she would succeed at trial, damages were inadequate and the balance of convenience favoured granting mandatory and prohibitory interlocutory injunctions to enable her to obtain the body and conduct the funeral and burial in Hong Kong; the Youngest Son was restrained from obstructing or claiming entitlement and ordered to deliver the deceased's HKID.

Citation
LU SEN MOON HWA v. LU CHUNG CHUN
Parties
Intended Personal Representative: Lu Sen Moon Hwa; Defendant: Lu Chung Chun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 May 2010
Case Number
HCMP847/2010
Procedural Posture
Miscellaneous Proceedings (hcmp 847/2010) / Interlocutory Application/decision
Outcome
Interlocutory orders granted in favour of the Mother
Legal Topics
Possession of Corpse, Interlocutory Mandatory Injunction, Right to Control Burial Arrangements, Appointment of Personal Representative
Source Language
EN
Probate and Administration Civil Procedure Equity and Injunctions Possession of Corpse Interlocutory Mandatory Injunction Right to Control Burial Arrangements Appointment of Personal Representative

Case Brief

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Parties

Lu Sen Moon Hwa

Intended Personal Representative

Lu Chung Chun

Defendant

Procedural Posture

Miscellaneous Proceedings (hcmp 847/2010) / Interlocutory Application/decision

Legal Issues

  1. 1 Who is entitled to possession of the deceased's body and to arrange burial
  2. 2 Whether an interlocutory mandatory injunction should be granted to give possession and relieve obstruction
  3. 3 Whether the surviving spouse is a fit and proper person and likely personal representative

Ratio Decidendi

The court held that the Mother, as the surviving spouse and likely personal representative with the highest priority to apply for administration, had the best legal claim to possession of the deceased's body; there was a high degree of assurance she would succeed at trial, damages were inadequate and the balance of convenience favoured granting mandatory and prohibitory interlocutory injunctions to enable her to obtain the body and conduct the funeral and burial in Hong Kong; the Youngest Son was restrained from obstructing or claiming entitlement and ordered to deliver the deceased's HKID.

Court Disposition

Interlocutory orders granted in favour of the Mother

Orders

  • The Youngest Son shall within 2 days deliver up to the Mother the Hong Kong identity card of the Late Mr Lu.
  • Until judgment or further order, injunction restraining the Youngest Son from preventing or obstructing the Mother from making and processing applications with Queen Mary Hospital, the Hong Kong Island Deaths Registry and any other authorities or bodies for retrieving the dead body of the Late Mr Lu and from...