VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT

The defendant's application for leave to appeal is dismissed because the propositions of law advanced by the defendant have no reasonable prospect of success: the authorities support that an executor of a foreign will may commence proceedings in Hong Kong though the executor cannot maintain or sign judgment without...

Source-derived case information.

Citation
VIDHYA NATIVIVAT AND OTHERS v. VITOON NATIVIVAT
Parties
Plaintiff: Vidhya Nativivat; Plaintiff: Viroj Nativivat; Plaintiff: Vinida Wongjariyakul (executor of the Estate of Vannee Nativivat)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 November 2012
Case Number
HCA1376/2011
Procedural Posture
Civil (probate/estate Dispute) / Application for Leave to Appeal (decision)
Outcome
Defendant's application for leave to appeal dismissed.
Legal Topics
Recognition of Foreign Personal Representatives, Capacity to Sue, Distinction Between Right to Commence and Right to Maintain Proceedings, Stay of Proceedings, Leave to Appeal
Source Language
en
Probate Conflict of Laws Civil Procedure Jurisdiction Trusts and Estates Recognition of Foreign Personal Representatives Capacity to Sue Distinction Between Right to Commence and Right to Maintain Proceedings +2 more

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Parties

Vidhya Nativivat

Plaintiff

Viroj Nativivat

Plaintiff

Vinida Wongjariyakul (executor of the Estate of Vannee Nativivat)

Plaintiff

Procedural Posture

Civil (probate/estate Dispute) / Application for Leave to Appeal (decision)

Legal Issues

  1. 1 Whether an executor of a foreign will has capacity to institute proceedings in Hong Kong
  2. 2 Whether a foreign personal representative per se is recognised in Hong Kong without a local grant of probate
  3. 3 Whether the right to commence proceedings is distinct from the right to maintain proceedings and to sign judgment

Ratio Decidendi

The defendant's application for leave to appeal is dismissed because the propositions of law advanced by the defendant have no reasonable prospect of success: the authorities support that an executor of a foreign will may commence proceedings in Hong Kong though the executor cannot maintain or sign judgment without obtaining a local grant; policy considerations favour recognising the limited right to commence to preserve the status quo and protect assets.

Court Disposition

Defendant's application for leave to appeal dismissed.

Orders

  • Defendant's application for leave to appeal is dismissed.
  • Previous order staying the proceedings until probate in respect of the deceased's estate has been taken out and a reasonable time has lapsed after submission to the defendant for inspection remains in effect.