Chinese customary law — succession — principles under Qing Code — deceased survived by daughters — succession to daughters as last resort
Wills, probate and succession — administration of estate — order for administration — whether valid assignment by daughters of their interest in estate of deceased
The deceased, X, was the registered co-owner of half shares of various lots of land (the “Lots”) on Lamma Island. The other half shares of the Lots were owned by the X’s two nephews (“Cs”). X died intestate in 1975 and was survived by two daughters from his first marriage (“ST and YT”), his second wife (“L”) and a daughter with L (“FY”). ST died in 1976 and L died in 1998. FY obtained letters of administration in respect of X’s estate in 2004 and was also the administrator of L’s estate. In 2006, Cs assigned their interest in their land to P. In 2016, an assignment was executed by YT and the administrator of the estate of ST under which YT and ST assigned to P their interest and entitlement to X’s estate whether under Chinese customary law and/or the Intestates’ Estate Ordinance (Cap. 73). P commenced proceedings for, inter alia, an order for the administration of X’s estate comprising the interest in the Lots. By way of affirmation, Cs confirmed that they would not compete with the daughters in succeeding to X’s estate.
Held, allowing the application, that:
1) Under Chinese law and custom, there was a fundamental difference between the scenario of a daughter and that of a son predeceasing the father. In the latter case, both the predeceased son, and the son of the predeceased son, would have been within the agnatic line of male descendants in the household. Where the son of the deceased son would succeed when the father died, the issue of extinction of the line of the family simply did not arise and art. 88(2) of the Qing Code did not operate. The norm was that a daughter was not entitled at all to inherit from her father except as a last resort when the family line became extinct for the lack of the last possible eligible male candidate, be he a close or distant one in the deceased father’s clan, to continue it. When a married daughter passed away prior to the extinction of the line of her maiden family, and therefore was never able to inherit her father’s estate, her surviving husband or their son, of another surname, would not be in a position to claim the right to her father’s estate. (See paras. 35–45.)
2) When the family line of X became extinct when L died, only the daughters surviving that were entitled to succeed pursuant to art. 88(2) of the Qing Code. YT and FY were entitled to inherit X’s estate in equal shares. ST or her estate had no interest in the estate to assign to P. (See para. 47.)
3) The disposition of YT’s entitlement to X’s estate, which was in the nature of a chose in action, by way of the Assignment was not invalid or ineffective. Under Chinese law and custom, YT and ST had in reality become their own masters in deciding how to deal with the property in X’s estate in this case. As the daughters’ succession came about only upon the passing of both the father and his widow, the daughters’ mothers, no question of parental consent should ever arise. There was no suggestion of the existence of other family elders whose consent would have been required and could have been sought for the disposition. Insofar as the general law applied to the disposition of the entitlement to inherit the estate, there was also a basis for recognising the effectiveness of the disposition by YT (Lord Sudeley v AG  AC 11, Wu Koon Tai v Wu Yau Loi  2 HKLR 477 considered). (See paras. 53–56, 64–67.)
4) While no factual basis of bad faith was suggested, the decade since FY had assumed her role and duties as the administratrix in 2004 called for explanation. FY pointed to nothing in principle that would prevent an order for administration of X’s estate. However, as the Lots were reported to be the only assets of the estate, an order for the settlement of all of the liabilities of the estate would not be made at this stage. (See paras. 69–70.)
This was an application by the plaintiff for an order for administration of the deceased’s estate. The facts are set out in the judgment.