Executor — removal — whether “necessary or convenient” to pass over executor — passed over on basis of hostility between executor and beneficiaries which affected administration
The deceased (“X”) bequeathed his HK$1.2 billion estate in six equal shares to his five children (including “C” and “J”) and son-in-law, and named C as executor. The six beneficiaries divided into two camps and J applied under Section 36 of the Probate and Administration Ordinance (Cap. 10) for C to be passed over as executor on the ground of necessity or convenience based on hostility and a loss of mutual trust among the siblings.
Held, granting the application, that:
Friction or hostility between an executor and a beneficiary per se were not good reasons for removing the executor. No corrupt or improper motive was to be imputed to the executor even if mutual hostility, without more, was established. However, hostility which affected the administration was a relevant factor and an executor could be removed if, due to the hostility he was proved unfit to perform his duties or a breakdown in the relationship had or could cause difficulty in the administration.
It was here necessary and convenient to pass over C as executor; there was a complete breakdown in relations, mutual distrust and lack of communication between C, and J and her supporters.
The size of X’s estate might also suggest that the administration was not as straightforward as C contended, and continued hostility could turn a simple administration into drawn-out and expensive litigation. Since no steps had been taken to administer the estate nearly three years since X’s death, appointing independent accountants nominated by C to do so best served the parties’ interests.
Obiter: It was hoped that henceforth legal advisors would exercise proper restraint in citing cases in contested applications as to how the discretion under Section 36, which was fact sensitive, should be exercised. The cases were of guiding value and not straitjackets.