MARY TUNG v. CHENG KAM WAH AND OTHERS

MARY TUNG v. CHENG KAM WAH AND OTHERS

Because the proposed revocation claim transformed the character of the proceedings into a probate action raising substantial factual disputes, requiring expert evidence and cross-examination, and because statutory and practice requirements (Order 76 Rule 2 and Practice Direction 20.2) demand a writ endorsed and notified to the Probate Registry, the originating summons procedure was inappropriate; the proper course is for the plaintiff to commence a fresh probate action by writ, so the originating summons is dismissed without prejudice and costs ordered against the plaintiff for specified items.

Citation
MARY TUNG v. CHENG KAM WAH AND OTHERS
Parties
Plaintiff/administratrix: Mary Tung (also known as Helen Cheng); 1st Defendant/executor: 1st Defendant (executor of the estate of Cheng Yung); 2nd Defendant/defendant (child of Plaintiff): 2nd Defendant; 3rd Defendant/defendant (child of Plaintiff): 3rd Defendant; 4th Defendant/defendant (child of Plaintiff): 4th Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 March 2011
Case Number
HCMP1676/2009
Procedural Posture
Probate/administration (revocation of Grant) / Originating Summons Dismissed Without Prejudice; Plaintiff Directed to Commence New Probate Action by Writ
Outcome
Originating Summons dismissed without prejudice; plaintiff permitted to commence fresh probate action by writ for revocation of the grant.
Legal Topics
Revocation of Grant, Administration Action Vs Probate Action, Originating Summons Procedure, Order 85, Order 76, Chinese Customary Law, Locus Standi, Costs
Source Language
EN
Probate Succession Family Law Civil Procedure Costs Revocation of Grant Administration Action Vs Probate Action Originating Summons Procedure +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Mary Tung (also known as Helen Cheng)

Plaintiff/administratrix

1st Defendant (executor of the estate of Cheng Yung)

1st Defendant/executor

2nd Defendant

2nd Defendant/defendant (child of Plaintiff)

3rd Defendant

3rd Defendant/defendant (child of Plaintiff)

4th Defendant

4th Defendant/defendant (child of Plaintiff)

Procedural Posture

Probate/administration (revocation of Grant) / Originating Summons Dismissed Without Prejudice; Plaintiff Directed to Commence New Probate Action by Writ

Legal Issues

  1. 1 Whether the plaintiff may revoke the grant of probate in HCAG 009748 of 2002
  2. 2 Whether the originating summons procedure is appropriate for a claim requiring substantial factual inquiry, expert evidence and cross-examination
  3. 3 Whether the estate includes New Territories land governed by Chinese customary law

Ratio Decidendi

Because the proposed revocation claim transformed the character of the proceedings into a probate action raising substantial factual disputes, requiring expert evidence and cross-examination, and because statutory and practice requirements (Order 76 Rule 2 and Practice Direction 20.2) demand a writ endorsed and notified to the Probate Registry, the originating summons procedure was inappropriate; the proper course is for the plaintiff to commence a fresh probate action by writ, so the originating summons is dismissed without prejudice and costs ordered against the plaintiff for specified items.

Court Disposition

Originating Summons dismissed without prejudice; plaintiff permitted to commence fresh probate action by writ for revocation of the grant.

Orders

  • Originating Summons dismissed without prejudice to the plaintiff to commence a fresh probate action by writ for revocation of Grant HCAG 009748 of 2002
  • Plaintiff ordered to pay the 1st Defendant's costs for the two hearings before the court (7 January 2011 and 25 February 2011)