Introduction

This Court of Appeal judgment concerns the estate of the late Mr Chow Yei Ching (“Deceased”) and deals with the issue of renunciation of executrix, which has to be dealt with before the Court could consider the Plaintiff’s appeal against the Decision of DHCJ Leung (“Judge”) made on 30 July 2020 dismissing her application for appointment of administrators pendente lite (“APL Decision”).

Background

The will

On 29 October 2015, the Deceased purportedly signed his will (“2015 Will”). The 2015 Will was challenged by the Deceased’s eldest daughter. Under the 2015 Will, the Deceased appointed his wife (“Mother”), his daughter (“Violet”), and his daughter (“Vi Vi”) to be the executrixes and trustees. The 2015 Will also provided that in case any one or more of them shall renounce probate or refuse to act as executrix or trustee, then by substitution, his daughters, namely Lina Chow (“Lina”), Lily Chow (“Lily”) and Lisa Chow (“Lisa”), shall fill in the vacancies strictly in the order named.

The probate action and APL Decision

On 10 May 2019, Lily commenced the Probate Action, whereby Violet, Vi Vi, and the Mother were the defendants. Later, Lily took out a Summons for an order to appoint two accountants as joint and several administrators pendent lite (“APL Summons”).

Pending the outcome of the APL Summons, the Mother renounced her right and title to probate and execution of the 2015 Will. By virtue of the terms of the 2015 Will, Lina then became the substituted executrix. The APL Summons was subsequently dismissed and Lily filed another Summons for leave to appeal the APL Decision. Leave was granted to Lily to discontinue her claim against the Mother on the ground of the Mother’s renunciation, and to substitute Lina as the 3^rd Defendant. On 27 April 2021, Lina also renounced her right and title to probate and execution of the 2015 Will. Again, by virtue of the terms of the 2015 Will, Lily became the substituted executrix.

On 14 May 2021, the Judge refused leave to appeal the APL Decision. The Court noted that the Judge might not have been made aware of the renunciation of Lina. Subsequent to the renunciations of the Mother and Lina, the parties were given directions to agree to file evidence on the state of executorship.

Renunciation Issue

In an application for appointment of administrators pendente lite, the Court will determine the identity of the executors and the working relationship between the executors which may affect their ability to cooperate in the administration of the estate. In the present case, given the 2015 Will expressly provides for a mechanism of substitution of executrix in the event of renunciation, the renunciation issue must be decided before the Court can proceed to determine the application for leave to appeal the APL Decision.

Express renunciation

Express renunciation of executorship is provided by section 29(2) of the Probate and Administration Ordinance (Cap. 10) (“PAO”) as follows “such renunciation may be made orally on the hearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn”.

Constructive renunciation

An executor may also be deemed to have constructively renounced executorship under section 30 of the PAO if the following takes place:

1.       he has neither applied for probate nor renounced executorship;

2.       he has been issued with a citation by any person claiming any interest in the estate calling upon him to accept or renounce executorship, and

3.       he (i) defaults in appearance to the citation or (ii) having appeared, he does not proceed to apply for probate or does not prosecute his application with reasonable diligence and further fails to apply for and obtain probate within the time limited by an order obtained by the person citing him.

1^st issue: Whether Lily has made an express renunciation

Under the Amended Statement of Claim of Lily, she stated that she does not admit the validity of the 2015 Will, and for that reason Lily would not, and does not, intend to accept the office of executrixship of the 2015 Will pending judgment of the Court in this Action.

The Court held that the above does not constitute an express renunciation on the part of Lily on a technicality ground. Section 29(2) of the PAO provides that an express renunciation may be made either orally or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn. However, in this case, Lily only signed the Statement of Truth but it was not attested by a solicitor or by any person before whom an affidavit may be sworn. Therefore, the Court did not accept the above as an express renunciation.

2^nd issue: Principle of implied renunciation under Hong Kong law

As Lily has not been issued with a citation under s.30 PAO, no issue of constructive renunciation has arisen in this case. The Court therefore moved on to consider whether in Hong Kong, the principle of implied renunciation exists, and if so, whether Lily’s conduct amounts to implied renunciation.

The defendants relied on several cases concerning only with disclaimer of trusteeship. The Court considered that the concept of disclaimer of trusteeship is a very different concept from that of renunciation of executorship. While common law has long recognized the right of a person named as trustee to disclaim the office and the estate, there is no statutory provision for disclaimer of trusteeship. This is in stark contrast with renunciation of executorship, where there are express provisions for express and constructive renunciation, but not “implied” renunciation, in the PAO. Such express provisions in the PAO have no equivalent in the administration of trusts.

The Court eventually held that the concept of disclaimer of trusteeship through conduct cannot be applied to create a new form of “implied” renunciation of executorship, nor is “implied renunciation” part of Hong Kong common law. The Court added that even if “implied renunciation” were to be regarded as part of Hong Kong law, on the facts of this case, Lily’s pleadings do not indicate a waiver or abandonment of her right to apply for probate as executrix, which is the crux of a renunciation.

In the circumstances, the Court found that Lily did not renounce her executorship.

Takeaway

This case serves as a guidance for parties who may wish to renounce executorship. The Court clarified that implied renunciation is neither provided in the PAO nor part of Hong Kong common law. On a side note, while the Court found some merit in the argument that Lily was positively pursuing hostile probate litigation, the Court did not deem it necessary at this stage of the proceedings to consider whether this disentitles Lily from applying for probate of the 2015 Will. It would be up to the Court upon the appropriate stage after an application for probate to decide whether or not to grant Lily probate.