Beneficiaries lack standing to enforce matters before estate administration completion; debts primarily payable from charged property.

Introduction

[1] This is an application by the 1st and 2nd applicants vide Originating Summons dated 5 November 2021 [Encl 1] for the following orders:

(a) A declaration that the respondent as the sole Executrix and Trustee for the late Jenny Lau Kia Hwei do settle and pay all of the debts of Jenny Lau Kia Hwei ("Deceased") in accordance with the Last Will and Testament of Jenny Lau Kia Hwei [WN KP 700709-13-5154] dated 28 November 2019 ("the Testator's Last Will") and to thereafter execute all transfer documents to distribute properties in compliance with s 17 of the Administration of Estates Ordinance (Cap 80).

(b) That if the respondent further refuses to comply with the terms of the Testator's Last Will, the 1st and 2nd applicant be at liberty to apply for revocation of the grant of probate by Amanah Raya Berhad and to elect and/or appoint in place a suitable Executrix/Executor to carry on the terms of the Testator's Last Will.

(c) That if the assets of the estate are insufficient to enable all the pecuniary legacies under the Testator's Last Will to be paid in full, such legacies shall abate proportionately to all beneficiaries in accordance with s 21 of the Administration of Estates Ordinance (Cap 80).

Background Facts

[2] The matter concerns the distribution of certain properties under the Testator's Last Will known as "Park Residence" and "Soho Duplex Lagenda". The Testator of the will is the Deceased who is the wife of the 1st applicant and the mother to the 2nd applicant (a minor). The Deceased passed away on 30 January 2020.

[3] The deceased had appointed her sister, Lau Kia Lee ("respondent") as sole Executrix and trustee for the Testator's Last Will. Probate was granted by Amanah Raya Berhad on 19 May 2020.

[4] Under the Testator's Last Will, the Deceased's half share in the Park Residence was bequeathed to the 1st applicant and the Deceased's half share in Soho Duplex Lagenda was bequeathed to the 2nd applicant. Both properties ie the Park Residence and Soho Duplex Lagenda were jointly purchased and jointly financed by the 1st applicant and the Deceased with Hong Leong Islamic Bank and Public Bank Berhad as financier respectively.

[5] The respondent is also bequeathed with certain assets and pecuniary legacies under the Testator's Last Will.

[6] The respondent had initially made repayment on the bank loans in respect of the charged properties. On 19 January 2021, the respondent wrote two letters to the 1st and 2nd applicants stating that she is not responsible for the payment of the loan on which the properties were charged in respect of the Park Residence as well as Soho Duplex Lagenda as there is nothing in the Testator's Last Will to state that the properties are given to the 1st and 2nd applicants free from encumbrances. However, in the letter to the 2nd applicant through the 1st applicant as her guardian, the respondent stated that she will help to pay half share of the monthly loan in respect of Soho Duplex Lagenda out of her own personal fund for the love of her niece, the 2nd applicant. It is further stated that the respondent will withdraw from paying the bank loan if later she is being made to believe that there is no longer any moral value in continuing with the arrangement (Exh P-7 of the 1st applicant's Affidavit in Support).

[7] In reply to the respondent's above letter, the 1st and 2nd applicants issued letters dated 14 April 2021 and 12 May 2021 demanding the respondent as Ex