Re Estate of Au Kong Tim
Court of Appeal
Civil Appeal No 213 of 2011
Yuen, Lam and Barma JJA
14 December 2012, 7 January 2013

Wills, probate and succession —whether empowered to pay part of deceased’s estate’s net income or lump sum for advancement to claimed beneficiary pending determination of probate actions

The Plaintiff (“P”), the grandson of the deceased (“X”), was named as a beneficiary of a share of X’s residuary estate under two wills allegedly made by X in 2002 and 2008. Pending the determination of challenges to the validity of each will in two probate actions, P unsuccessfully sought an order that the administrator pendente lite – pending litigation - pay him part of the estate’s net income or a lump sum for his advancement. P now appealed.

Held, dismissing the appeal, that, inter alia:

The definition section of the Trustee Ordinance (s.34 Cap. 29) did not provide a foundation in law for P’s claim. A personal representative generally became a trustee of the net residue for the persons beneficially interested to it when the administration was complete and the net residue was ready for distribution. By contrast, the function of the administrator pendente lite was not to complete the administration, but to ensure that the deceased’s estate was managed and preserved pending the probate actions. Thus, his powers and duties ended automatically with the final order in the probate actions (subject to appeal).

Further, P was not a person who had a beneficial entitlement to property held on trust, contingent or defeasible on his reaching a certain age or on the occurrence of any other event under s.34.



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