2. My father’s cousin died without a will. He was unmarried and had no children. His siblings do not want to apply for the Letters of Administration due to their old age. Can my father or I apply for the Letters of Administration?

2. My father’s cousin died without a will. He was unmarried and had no children. His siblings do not want to apply for the Letters of Administration due to their old age. Can my father or I apply for the Letters of Administration?

Under r.21 of Non-Contentious Probate Rules (Cap. 10A), the persons having a beneficial interest in the estate are preferred to be granted the administration. In default of any such person it shall be granted to the Official Administrator.

My father and I are issues of the uncle and aunt of the deceased. 

Assuming that the deceased only leaves siblings and a cousin (i.e. my father),  pursuant to s.21(1)(iv) of Non-Contentious Probate Rules (Cap. 10A), the deceased’s siblings have immediate beneficiary interests and are entitled to a grant to administration.

Under ss.21(1) and (2) of Non-Contentious Probate Rules (Cap. 10A), my father and I do not have a beneficial interest in the estate.

Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate.

However, my father and I may have beneficial interest in the estate by virtue of s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). If we were maintained, either wholly or substantially, by the deceased, immediately before the death of the deceased, my father and I would be entitled to apply to the court for an order under s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate.

If my father and I have grounds to establish beneficial interests under s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), then we must prove that the deceased’s living siblings have waived their rights to the grant, and apply for the grant of administration by virtue of s.21(4) of Non-Contentious Probate Rules (Cap. 10A).

Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).

However, we may also apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to appoint us to be the administrators of the estate.  We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so.