How to bypass a probate applicant with priority right? -A brief analysis of the “principle of necessity and convenience”
Order of Priority in Application for Grant
Under Hong Kong’s legal system, inheritance is an estate administration system, that is, the person with priority specified by law applies to the court to become the estate administrator (those designated by the will are called executors, and those not designated by the will are called estate administrators). After the person with priority obtains the inheritance letter issued by the court, he acquires the legal status of the estate administrator, and then the estate administrator manages the estate and distributes the estate to the heirs.
Generally speaking, if the deceased left a will and named an executor in the will, the executor has priority in applying for letters of probate. In the case where there is no will or no executor is designated, the person with priority will be determined in accordance with the provisions of the law. For detailed legal principles, please see the article “Hong Kong Estate Inheritance: Priority Order for Applications for Estate Administrators》。
Bypassing a Probate Applicant with Priority Right
Although there is the above general priority principle, under certain conditions, the court can bypass (pass off) the person with legal priority and appoint a person after the priority to serve as the estate administrator, or appoint an independent person. A third party (such as a lawyer or accountant) acts as the administrator of the estate. This applies both where there is an executor named in the Will (bypassing the executor named in the Will) and where there is no executor named in the Will (bypassing the person who has priority under the law).
The legal principle applicable to bypassing the priority applicant for estate administration is stipulated in section 36 of the Probate and Estate Administration Ordinance. According to this section, in four circumstances, the court can exercise its discretion to appoint a court. The person deemed appropriate to act as the administrator of the estate. Among these four situations, the most commonly cited situation is “when the court deems it necessary and convenient (necessary and convenient)”
Application of “Principle of Necessity and Convenience”
How to understand and apply the “principle of necessity and convenience”, the leading case is Luo Zheqin’s Estate Case (HCCA 3131 of 2011), in this case, the court established the following principles:
- The courts have broad discretion to determine what is necessary and convenient;
- Because the best interests of the estate are considered;
- Consideration may not only be given to factual factors relevant to the estate and estate administration, but may also extend to consideration of other relevant factors, as long as such factors are relevant to the decision as to whether to bypass the priority holder.
- This is a relevant consideration if the heirs have hostility and distrust towards the person with priority and that distrust arises from the inappropriate manner in which the person with priority has dealt with the estate.
Other recent cases relating to section 36 of the Probate and Administration Ordinance include: Hu Xiulun’s inheritance case、Ma Qiuyan’s inheritance case.