With increasing numbers of international estates and the multi-jurisdictional litigation it can create, the recent Court of Appeal decision relating to the estate of Vannee Nativivat raised an interesting issue: can an executor appointed under a foreign Will bring proceedings in Hong Kong if they have not obtained probate in Hong Kong?
In this case, the executors claimed to have been appointed under a Thai language Will. The Will is the subject of litigation in Thailand. A Thai Court had found the Will to be valid, but that was being challenged on appeal. Thus probate had not yet been granted in Thailand and probate in Hong Kong was dependent on the Thai issues being resolved.
Meanwhile, the Thai executors commenced proceedings in Hong Kong to recover a property the Deceased was said to have transferred pursuant to a fraudulent misrepresentation. The Defendant to the Hong Kong action disputed whether the executors had the right to bring proceedings where there was no Hong Kong (or Thai) grant of probate.
The Court of Appeal upheld the well-established rule that an executor’s title arises from the Will, not the grant of probate. The grant of probate only serves to prove the executor’s title. Thus, on the face of it, an executor can commence proceedings simply as a result of the authority arising from the Will. However, there is an important addendum: although an executor gets title from the Will, he or she will need a grant of probate before collecting and/or distributing the assets. Therefore, the case could not proceed to trial until the executor has the grant of probate.
Although this may seem like a technical distinction, the point can actually be very significant – particularly when it comes to limitation periods i.e. the time period within which someone has to bring a claim in court. If a limitation period is likely to run out before obtaining the grant of probate, the executor should commence proceedings to make sure the right to bring a claim is preserved. Otherwise, the right to sue may well be lost and the executor may have to answer to the beneficiaries for the losses.