Wong Wing Sze Tiffany v Tsang Wing Fai
Court of First Instance
Miscellaneous Proceedings No 367 of 2019
Deputy Judge William Wong SC
23, 31 July 2019

Wills, probate and succession — administration of estate — executor — removal — substitution of court-appointed administratrix — continued occupation of deceased’s properties by former executor — orders for vacant possession and delivery up of title documents of properties and vesting orders against former executor appropriate

X died in 2012. By her will, X’s son, D1, was appointed sole executor and the residuary estate to be distributed amongst D1, and D1’s siblings and children. Following X’s death, D1 and his family (including his wife, D2) moved into and took physical possession of a flat (the “Flat”) and a car park space registered in X’s name (collectively, the “Properties”). In 2018, D1 was removed as executor of the estate. The Judge rejected D1’s explanation for occupying the Flat and found that he had failed in his fiduciary duty to sell it to make distribution (the “Removal Judgment”) (see [2018] HKEC 1312). P was subsequently appointed as administratrix of X’s estate. Despite the dismissal of D1’s appeals against the Removal Judgment by the Court of Appeal and P’s repeated demands, Ds remained in the Properties. P applied for inter alia Ds to deliver up all title deeds and documents relating to the Properties (the “Title Documents”) as well as vacant possession of the Properties; and vesting orders regarding the Properties and all other assets of X’s estate.

Held, granting the orders sought, that:

1) P, as administratrix of X’s estate, had a legal right to sue for vacant possession of the Properties. D1, having been removed as executor, had no right to occupy the Properties and no valid ground to refuse to deliver up vacant possession of the Properties (Williams v Holland [1965] 1 WLR 739, Liu Kam Hoi v Liu Ping Kuen (HCA 6728/1998, [2017] HKEC 1759) applied). (See para. 13, 16–17, 19–21.)
2) P was entitled in law to have the Title Documents delivered up to her and the vesting orders sought, on being substituted for D1 as administrator under s. 33(3) of the Probate and Administration Ordinance (Cap. 10). Such orders would facilitate the due and proper administration of the estate by P and would also be in the beneficiaries’ interests (Re Estate of Shih Chia Ying (HCMP 1891/2011, [2012] HKEC 1513), Yuen Kim Fung v Yuen Kim Wa (HCMP 2076/2014, [2015] HKEC 219), Chan Yu Hong v Chan Kam Hong (HCMP 888/2013, [2017] HKEC 1491) applied). (See paras. 24–26.)

Application

This was an application by the court-appointed administratrix of the estate of the deceased for inter alia the first and second defendants to deliver all title deeds and documents relating to properties of the deceased; delivery up of vacant possession of such properties; and vesting orders. The facts are set out in the judgment.

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).