1. The executor is missing or refuses to take up the appointment. Can another person apply for a Grant? What does he need to do?
Yes, if the person has an interest in a deceased’s estate.
You may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) of Probate and Administration Ordinance (Cap. 10). The executor will then be required to accept or renounce his executorship.
You should lodge a draft citation to the Registrar. R.45 of the Non-Contentious Probate Rules (Cap. 10A) provides for the formal requirement of the citation.
If the executor is missing, depending on the circumstances, you may call upon the executor to :
- accept or refuse probate using Form C2.2. The relevant provision is 46(1) of the Non-Contentious Probate Rules (Cap. 10A) ;
- take probate or to take a grant using Form C2.2. The relevant provision is under 46(3) of the Non-Contentious Probate Rules (Cap. 10A)) ; or
- propound a will and use Forms C.2.1 and C2.2 with necessary modifications.
If the executor refuses to take up the appointment, you should use Form C2.2 to call upon the executor to accept or refuse probate under r.46(1) of the Non-Contentious Probate Rules (Cap. 10A).
You should also lodge a draft affidavit for the Registrar’s approval.
After the draft citation and the draft affidavit are approved, you should:-
- file and personally serve on the executor i) the citation; and ii) the sworn affidavit and
- enter a caveat if it has not been previously entered. The relevant provision is 45(3) of the Non-Contentious Probate Rules (Cap. 10A);
If the executor fails to appear or prosecute his application for a grant within the time limit, you may apply by inter-partes summons returnable to the Registrar for the appropriate order. The relevant provisions are r.46(7)(a) and (c) of the Non-Contentious Probate Rules (Cap. 10A).
If the executor fails to appear or propound a will within the time limit, you may apply by motion for an order for a grant as if the will were invalid. The relevant provision is r.47 of the Non-Contentious Probate Rules (Cap. 10A)). In such a case, the Judge may make an order for a grant contrary to the terms in the will.
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