Executors’ Power over Administration of an Estate

Recent High Court case Lam Man Cheung v Lam Man Yin [2022] HKCFI 866 concerns a dispute between executors and a beneficiary of an estate.

The beneficiary, who is entitled to 40% interest of a property, requested the executors to execute an assent to vest the 40% interest to him. The executors (one of them is entitle to the other 60% interest of the property in personal capacity) insisted that the property should be sold and the proceeds be distributed among the beneficiaries.

The court examined the construction of the Will and concluded that the shares of the property devised to the beneficiaries are not intended to be in specie (in its actual form), and does not bar the executors from selling the property in any way. The executors’ refusal to give an assent does not constitute any misadministration. Thus, an order in favour of the Executors is granted.

The Hon Mr Justice Keith Yeung confirms and restates the following principles on administration of estate:

1. It is well-established that a beneficiary has no legal or beneficial interest in the assets of a deceased person’s estate until administration and distribution;
    
2. A beneficiary has a right to have the estate properly administered;
    
3. A beneficiary cannot, in the absence of maladministration force the executor to exercise a power (such as, for instance, the power to assent subject to mortgage);
    
4. The power of executor remain available until the administration is complete and the residue is ascertained;
    
5. A personal representative has an absolute power of disposition over all the personal estate of the deceased;

This judgment clarifies executors’ scope of power in administration. Executors are not required to act in the beneficiary’s preferred way (i.e. give an assent). Tanner De Witt has substantial experience on contentious and non-contentious probate and we are always ready to assist.

Eddie Look and Jeeby Au

If you would like to discuss any of the matters raised in this article, please contact:

Eddie Look
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.