The Introduction of Probate Action and Revocation of Grant and Removal of Executor
Probate Action and Revocation of Grant
When the probate or letters of administration ought not to have been granted or contains an error, application can be made to the Court to revoke it by way of probate action.
Probate action means an action for the grant of probate of the will, or letters of administration of the estate of a deceased person, or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will.
Under the law of Hong Kong, the procedure of commencing a probate action is governed by Order 76 of the Rules of High Court, Cap 4A (“RHC”). Order 76 applies, inter alia, the revocation of grant but it does not apply to an application for rectification of a will nor an application for a declaration of relationship which would entitle a person to apply for a grant or to benefit from an estate.
The most common type of probate action is the application for revocation of a grant of probate or letters of administration, which can be contentious as well as non-contentious. Since most actions which fall within the definition of “probation action” are likely to involve contentious issue of fact, therefore Order 76 rule (2) of RHC states that the application for revocation may be commenced by a Writ. If there is no opposition, it can be commenced by Originating Summons.
There are many reasons for a party to revoke a grant, in a case where the grant has been made fraudulent or in ignorance, or a will has been discovered after the grant of probate or letters of administration, or a grant has been made pending a caveat. An executor who has obtained the grant is not entitled to have the grant revoked, and/or a grant cannot be revoked on proof afterwards by virtue of the failure of compliance conditions when the application was first made.
Any person entitled to administer the estate under the grant of probate or letters of administration or any person whose interests may be affected in any probate action should be made a party under Order 76 rule 3 of RHC. Once an application has been made, the grant of probate or letters of administration must be lodged with the Court so as to ensure that “nothing could be done on the strength of the grant in the meantime” as can be seen in the case of Ho Wai Yin v Cheng Suet Yee [2004] HKCU 274. This case shows that the lodgement of the grant would not be a sufficient protection to the asset of the estate, therefore an ex-parte injunctive relief was granted to prevent and stop the distribution of assets pending the determination of the revocation application.
Removal of Executor
The duty of an executor is a fundamental and important one. The failure to discharge his duty to keep a proper and full account is a good reason to justify the removal of an executor or the administrator. In the case where probate has been granted but the executor or the administrator has failed to administer it, administration action can be taken out under Section 33(3) of the Probate and Administration Ordinance (Cap 10) to remove the executor or the administrator.
Most hearings of contentious cases are fixed and heard before a Judge, whereas in a non-contentious case, the matter is considered by a probate master and would be disposed of by papers. According to the Court of First Instance case of Chow Chal Kiu v Chow Man Chit [2017] HKCU 134, when deciding whether to remove an executor or administrator, the proper question to ask by the Court is whether the removal is necessary for the due and proper administration of the estate and whether it is in the interests of the beneficiaries for the administrator to be removed.
Revocation of grant and removal of an executor do not go side by side, but the interested party is advised to seek professional legal advice immediately to take out the appropriate application if there are concerns on the grant of probate or the letters of administration or on the administration of the grant. The parties are also reminded that litigation is the last resort. In order to save time and costs, the parties are encouraged to attempt mediation to resolve disputes and maintain family harmony.
