SUM WAN PIU PAUL v. LAU SIU HONG

HCAP3/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.3 OF 2004

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D E C I S I O N

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1. This is a probate action.  The background leading to this action may be summarized as follows.

Background

2. On 26 May 1998, Madam Lau Siu Wah (“Madam Lau”), a widow, executed an English will of the same date (“the Will”) in accordance with section 5 of the Wills Ordinance at the office of Messrs Daniel Wong & Partners.  By virtue of the Will :

(1)	All former wills and testamentary dispositions made were revoked.
(2)	The Will was declared to be her last will and testament.
(3)	The plaintiff was appointed as the sole executor and trustee of the Will.
(4)	The entire estate of Madam Lau was given, devised and bequeathed unto the plaintiff upon trust :
	(a)	to pay all just debts and funeral and testamentary expenses of Madam Lau; and
	(b)	for the plaintiff and Ms Lai Mei Tan Jenny (“Ms Lai”) as tenants-in-common in equal shares absolutely.
(5)	The plaintiff and Ms Lai are the sole beneficiaries to the entire or residuary estate of Madam Lau, entitled to the same absolutely as tenants in common in equal shares.

3. On 27 December 2000, Madam Lau died without any issue.

4. The defendant is Madam Lau’s brother.  He took out an application for Grant of Letters of Administration under HCAG No. 6044/2003 on 3 July 2003.  Despite the plaintiff’s repeated requests, the defendant has not withdrawn that application.

5. On 3 November 2003, the plaintiff entered a caveat in Madam Lau’s estate under Caveat No. HCCA2221/2003.  The defendant filed a warning to the plaintiff against the said caveat on 12 January 2004.  The plaintiff then filed an appearance to that warning on 21 January 2004.

The probate action

6. On 31 March 2004, the plaintiff commenced the present action and claimed for, inter alia :

(1)	A declaration that the Will is valid and had been validly executed.
(2)	Pronouncement for the Will in solemn form of law.
(3)	Grant to the plaintiff of grant of probate to Madam Lau’s estate.

7. The defendant filed his defence on 28 April 2004.  In essence, the defendant raised the following points in defence :

(1)	It is incumbent of the plaintiff to produce the original of the Will in these proceedings, failing which the defendant will rely on the presumption that the Will, if genuinely made at all, was destroyed animo [sic] revocandi.
(2)	It is denied that the Will was the last and final will and was neither revoked nor superseded prior to death.
(3)	Madam Lau lacked the necessary testamentary capacity in that when she executed the Will she was 71 and was suffering from senile dementia.
(4)	The plaintiff had exerted undue influence on Madam Lau in order to procure the execution of the Will.

The application for summary judgment

8. By summons dated 17 August 2004, the plaintiff took out the present application for summary judgment under Order 14, Rules of the High Court.

9. This application is supported by :

(1)	The 2nd affidavit of the plaintiff filed on 17 August which basically repeated the matters pleaded in the statement of claim and verified them.
(2)	The affirmation of Mr Daniel Wong Kwok Tung (“Mr Daniel Wong”), the solicitor responsible for the execution of the Will, filed on 17 August 2004, which described in detail how Mr Daniel Wong took instructions from Madam Lau, the steps he took to insure that the instructions represented her true intention and desire and how the Will was executed.
(3)	The 3rd affidavit of the plaintiff filed on 20 September 2004, exhibiting a letter dated 1 March 2004 issued by a Doctor Yu Ka Kui Gabriel of Queen Mary Hospital, certifying Madam Lau’s condition between 1996 and mid-1999.  She was suffering from depressive illness and was under drug and psychological treatment.  However, during the above period, she was not found to be forgetful nor suffering from any significant cognitive impairment.

The defendant’s case

10. The defendant did not file any affirmation himself.  Instead, it was his solicitor, Mr Wong Yat Wa (“Mr Y.W. Wong”), who filed an affidavit on 28 August 2004 to oppose the plaintiff’s application.  It is worth noting that Mr Y.W. Wong has not explained why the defendant has not filed any affirmation.  He did refer to the defence but stopped short of verifying the matters pleaded.  In sum, the defendant has not put forward any evidence to challenge the affidavit evidence adduced on behalf of the plaintiff.

11. Mr Y.W. Wong sought to raise three points.  First, Order 14 does not ordinarily apply to a probate action.  Even if this action is undefended, the plaintiff should apply for an order for trial under Order 76, rule 6.  Second, the defence contained “valid triable issues, which the Court, whose function being inquisitorial, should be afforded the opportunity to examine and to consider at a trial in open Court before making a declaration or order”.  Third, the defendant is entitled to cross-examine the witnesses.

12. I will deal with these points in turn.

Whether Order 14 applies?

13. At the hearing before me, Mr Tong, counsel for the defendant, contended that Order 14 simply does not apply to probate actions.  With respect, I am unable to accept his submission.

14. Subject to certain exceptions, Order 14 applies to all actions begun by writ : Order 14, rule 1(2).  That includes probate actions which must be begun by writ : Order 76, rule 2(1).  Those exceptions contained in Order 14 are irrelevant for present purposes.  In other words, nothing in Order 14 excludes its application to probate actions.

15. The position under Order 76 is just the same.  Probate actions, being actions begun by writ, proceed in accordance with the other rules in the Rules of the High Court applicable to actions begun by writ generally except insofar as those rules may be excluded or modified by provisions in Order 76 to cater for the special nature of such actions.  Thus, there are specific requirements in connection with issue of writ (rule 2), failure to acknowledge service (rule 6, disapplying Order 13), service of statement of claim (rule 7), counterclaim (rule 8), contents of pleadings (rule 9), default of pleadings (rule 10, disapplying Order 19), discontinuance and dismissal of the action (rule 11, disapplying Order 21) and compromise of action (rule 12) : see Hong Kong Civil Procedure 2004, Vol.1, para.76/0/2 at p.1055.  Nothing in Order 76, however, excludes or modifies the application of Order 14 to probate actions.

16. The defendant sought to rely on the requirement to proceed to trial even in cases of default under Order 76, rules 6 and 10 and contended that Order 14 would not apply.  In my view, this contention is misconceived.

17. The combined effect of Order 76, rules 6 and 10 is this.  If a defendant defaults in acknowledging service of the writ or if there is default in service of a defence, the plaintiff has two alternatives : (1) to apply for an order for trial (normally on affidavit evidence); or (2) to apply for an order that the action be discontinued or dismissed, and for a grant of probate or letters of administration to be made to the person entitled thereto under Order 76, rule 11 : see Hong Kong Civil Procedure, Vol.1, para.76/11/2 at p.1060.

18. The purpose of the above default provisions is to require the plaintiff to satisfy the court (normally on affidavit evidence) that he is entitled to the relief claimed although the action is in substance not defended by reason of the defendant’s default.  That however does not follow that when the action is defended, the plaintiff must still proceed to trial.  If the defendant, purporting to defend the action, is unable to raise any credible defence, the plaintiff should be entitled to proceed to summary judgment without incurring unnecessary costs and delay.  It makes perfect sense to retain the application of Order 14 to probate actions.

19. In my view, Order 14 applies to probate actions.  So do all the general principles pertaining to summary judgment applications.

Whether there is any triable issue?

20. I next consider if the defendant has raised any triable issue, as contended by Mr Y.W. Wong on his behalf.

21. Here, it is trite that the burden lies on the defendant to show that he has a credible defence.  However, as noted above, the defendant has not adduced any factual evidence to support his case or to contradict the plaintiff’s evidence.  Mr Y.W. Wong has not even verified the matters pleaded in the defence.  It is not sufficient for him to simply point to the defence and alleged that there are triable issues.  Bare assertions are simply not enough.

22. In any event, on the evidence before me, the plaintiff has already answered the points raised in the defence.  (See paragraph 7 above for a summary of those points.)

23. First, on production of the original of the Will, that plaintiff has already done so.

24. Second, on the denial that the Will was the last and final will and was neither revoked nor superseded prior to death, the defendant has not adduced any evidence to suggest that there is any competing will or that the Will was ever revoked or superseded.

25. Third, on lack of testamentary capacity, the plaintiff has adduced medical evidence to rebut the defendant’s allegation.  It is further corroborated by Mr Daniel Wong’s undisputed evidence that he had found Madam Lau “to be of lucid mind and she was able to communicate logically and coherently” throughout the meeting where she gave instructions to him regarding the Will.

26. Fourth, on undue influence, Mr Daniel Wong’s undisputed evidenced on the circumstances leading to the execution of the Will is quite indicative that there was no undue influence as alleged.  Further, it is common ground that Madam Lau lived with the plaintiff and Ms Lai for years and they were looking after her.  I agree with the submission of Mr Chan, counsel appearing for the plaintiff, that there is nothing suspicious at all that Madam Lau would see fit to bequeath her estate in favour of them.

27. Accordingly, I rule that the defendant has not raised any credible defence or triable issue as alleged.

Need for cross-examination

28. Lastly, I consider the need for cross-examination, a point heavily relied on by Mr Tong.  He argued that the defendant is entitled to cross-examine the plaintiff : Hong Kong Civil Procedure, Vol.1, para.76/8/1 at p.1059.  Order 14 is therefore inappropriate.  As I understand him, he was in effect arguing that the need for cross-examination constituted a reason for trial.

29. In my view, when the above commentary in para.76/8/1 of the Hong Kong Civil Procedure is properly understood, it does not support Mr Tong’s submission.  Para.76/8/1 reads :

“Counterclaim in probate action—A probate action being of the nature of an action in rem, and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more.  A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (O.62, r.6(1)(c)), but in other cases he must set up a positive case by way of counterclaim.

For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim.  It would rarely be appropriate for a probate action to be dismissed for want of prosecution.”

30. Here, it is simply not the defendant’s case that he merely insists upon the Will being proved in solemn form of law and only intends to cross-examine the attesting witnesses.  He has not given such notice in his defence at all.  The need to cross-examine as referred in para.76/8/1 does not arise.

31. Further, as I have already ruled that the defendant has failed to raise any credible defence or triable issue on his case, the need to cross-examine does not arise from any points pleaded in his defence either.

32. This point must also fail.

Conclusion

33. For the above reasons, I allow the plaintiff’s application and will enter judgment as per the Order 14 summons.  I will also make an order nisi that the plaintiff shall have the costs of the action, including the costs of this application, to be taxed if not agreed.