1. The person entitled to the Letters of Administration in priority is missing or refuses to apply for the Letters of Administration. Can another person apply for it? What does he need to do?
Please refer to the section regarding “Order of priority / Order of Entitlement”.
If he is entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he must first clear off all persons entitled to a grant set out in the categories mentioned above.
In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation.
Rr.45 to 48 of Non-Contentious Probate Rules (Cap. 10A) provide for the procedures on the issuance and service of citations and entry of appearance by a person cited as well as the application for an order for a grant upon nonappearance.
He should lodge a draft citation (Form C2.2) to be settled by the Registrar (r.45(1)) as well as a draft affidavit for approval.
After the draft citation and the draft verifying affidavit are approved, he should file the citation together with the properly sworn affidavit and at the same time enter a caveat (if it has not been previously entered).
The citation and verifying affidavit must be personally served (r.45(4)). Other substituted modes of service will only be granted if it is shown that personal service cannot be effected after reasonable attempts have been made.
When the time limited for appearance has expired, if the Citee fails to appear or prosecute his application for a grant with reasonable diligence, he may apply by inter-partes summons returnable to the Registrar for an order for a grant to himself as provided by r.46(7)(a).
If he is not entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he may apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to pass over a person entitled as an administrator to him. He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration.
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