RE CHEUNG HUNG

RE CHEUNG HUNG

The Probate Registry has jurisdiction under the NCPR and s36 to raise requisitions about facts relevant to priority and suitability of an applicant for grant; the Registrar must exercise discretion judicially and may accept documentary evidence or answers by correspondence where sufficient, but may require supplemental affirmation where clarification or sworn evidence is necessary. Applying those principles, the court set aside the outstanding requisition concerning the disinherited spouse given production of the decree absolute and set aside requisitions regarding the grandchildren where birth certificates provided sufficient verification.

Citation
RE CHEUNG HUNG
Parties
Applicants: Applicants (siblings of executrix; beneficiaries); Deceased: Cheung Hung; Original Executrix (deceased): Executrix named in will (deceased); Respondent: Probate Master/Registrar, Probate Registry
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 December 2010
Case Number
HCAG12943/2009
Procedural Posture
Non Contentious Probate — Application for Grant of Letters of Administration With Will Annexed and Appeal Under NCPR Rule 62(1) to Set Aside Probate Registry Requisitions / Chambers Hearing and Judgment on Application to Set Aside Requisitions (hearing 1 Dec 2010; Judgment 15 Dec 2010)
Outcome
Appeal allowed in part; specific probate requisitions set aside
Legal Topics
Letters of Administration, Probate Requisitions, Jurisdiction of Probate Registry, Priority and Suitability of Administrator, Standard of Proof in Non Contentious Probate
Source Language
EN
Probate and Administration Civil Procedure Estate Law Letters of Administration Probate Requisitions Jurisdiction of Probate Registry Priority and Suitability of Administrator Standard of Proof in Non Contentious Probate

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Parties

Applicants (siblings of executrix; beneficiaries)

Applicants

Cheung Hung

Deceased

Executrix named in will (deceased)

Original Executrix (deceased)

Probate Master/Registrar, Probate Registry

Respondent

Procedural Posture

Non Contentious Probate — Application for Grant of Letters of Administration With Will Annexed and Appeal Under NCPR Rule 62(1) to Set Aside Probate Registry Requisitions / Chambers Hearing and Judgment on Application to Set Aside Requisitions (hearing 1 Dec 2010; Judgment 15 Dec 2010)

Legal Issues

  1. 1 Whether the Probate Registry has jurisdiction to raise requisitions concerning matters relevant only to distribution of the estate
  2. 2 Whether answers to requisitions must be by supplemental affirmation/affidavit or may be supplied in correspondence
  3. 3 Proper standard of proof and role of prima facie evidence in non-contentious probate

Ratio Decidendi

The Probate Registry has jurisdiction under the NCPR and s36 to raise requisitions about facts relevant to priority and suitability of an applicant for grant; the Registrar must exercise discretion judicially and may accept documentary evidence or answers by correspondence where sufficient, but may require supplemental affirmation where clarification or sworn evidence is necessary. Applying those principles, the court set aside the outstanding requisition concerning the disinherited spouse given production of the decree absolute and set aside requisitions regarding the grandchildren where birth certificates provided sufficient verification.

Court Disposition

Appeal allowed in part; specific probate requisitions set aside

Orders

  • Requisition requiring supplemental affirmation regarding the named (disinherited) spouse set aside in light of production of decree absolute and submissions
  • Requisitions regarding the grandchildren set aside as their relationship was verified by production of birth certificates and supplemental affirmation was unnecessary