Nativivat v Nativivat
Court of Appeal
Civil Appeal No 23 of 2013
Lam V-P and Kwan JA
Probate
27 August, 6 September 2013

Right of executor to institute legal proceedings before obtaining grant of probate

The plaintiffs (“Ps”) and the defendant (“D”) were the children of X, the deceased, a foreign national who died domiciled in Thailand. Ps were purportedly the executors of a Thai language will made by X in Thailand. In Thai probate proceedings, the Court held that X’s will was valid and D’s appeal was pending. Therefore, Ps had not yet obtained any grant of probate from either the Thai or Hong Kong Court.

Ps brought the present proceedings in Hong Kong seeking declarations that a deed of gift under which X had assigned her interest in a Hong Kong property to D was void for fraudulent misrepresentation and the property was held on trust for X and her estate. The lower court refused D’s application to strike out Ps’ claim and granted a stay of the action pending a grant to be obtained in Hong Kong by Ps and a reasonable time had elapsed after probate had been submitted to D for inspection. D appealed.

Held, dismissing the appeal, that:

An executor derived his title from the will of the testator rather than the grant of probate and had the right to institute and to pursue an action before obtaining a grant until production of the probate became necessary. This principle was not confined in its application to local executors but applied also to a “foreign executor” ie. an executor of an estate of a deceased who was domiciled abroad at the time of his death.

However, an executor, whether local or foreign, had to obtain a grant in Hong Kong before he could prove his title and receive and distribute properties of the estate here. Thus, the mere commencement of proceedings (as opposed to the obtaining of a judgment therein) would not result in the deceased’s assets coming into the foreign executor’s hands before a Hong Kong grant was obtained. 

Jurisdictions: 

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