YIU KA KUI v. TAY GAK YONG and TAY FENGYI, administrators of the Estate of CHING MUN FONG (also known as CHING FOOK FOOK) AND ANOTHER

HCAP 23/2025

[2026] HKCFI 4059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 23 OF 2025

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BETWEEN

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DECISION

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INTRODUCTION

1.  This is the substantive hearing of the Defendants’ Summons dated 7 August 2025 (the “Striking-Out Summons”) seeking to strike out the Statement of Claim (the “SOC”) and to have the action dismissed in its entirety.

2.  There is also before the Court the Plaintiff’s Summons dated 5 January 2026 for leave to file further affirmations (the “Leave Summons”). At the invitation of Mr Yin for the Plaintiff, I decide to consider the further affirmations on a de bene esse basis at this hearing. Whilst I take on board Mr Yu SC’s reasons for opposing the admission of these late affirmations, taking into consideration the key issues that this Court has to be determined and the fact that this is a striking out application, I am of the view that balance the consideration of fairness and prejudice, the appropriate course is for this Court to consider the same on de bene esse basis and deal with the key issues in the Striking-Out Summons.

MATERIAL FACTS

3.  As this is an application to strike out the SOC, I take the facts directly from the Plaintiff’s case. This action concerns the estate (the “Estate”) of the late Ching Mun Fong (the “Deceased”). The value of the Estate is over SG$1.9 billion. Within 4 days after the death of the Deceased, Tay Gak Yong and Tay Fengyi (the “Tay Children”), the grandchildren of the Deceased, applied for (and eventually obtained) a grant of letters of administration in common form in Singapore (the “Singapore Grant”).

4.  The Tay Children then had the Singapore Grant re-sealed in Hong Kong (the “Hong Kong Grant”).

5.  The Plaintiff is a maternal nephew of the Deceased, who passed away on 11 November 2023. He seeks to revoke the Hong Kong Grant on the ground that the Tay Children failed in their duties in making a thorough search and enquiries on whether the Deceased left a will.

6.  The 2^nd Defendant (“Collin”) is the only daughter of the Deceased.

7.  The Deceased lived with Mr Tan Geok Tee (“Grandfather”), who passed away in Singapore in 1993, as man and wife. Grandfather is not the biological father of Collin, who was a child born to the Deceased before she met Grandfather.

8.  The Tay Children are the children of Collin. They obtained the Singapore Grant on 24 January 2024 on the basis that the Deceased died intestate. Based on the Singapore Grant, they had it re-sealed in Hong Kong and obtained the Hong Kong Grant on 5 March 2025. The Tay Children are named as the 1^st Defendant in this action in their capacity as the co-administrators of the Estate under the Hong Kong Grant.

9.  In 1960s to 1980s, the Deceased and Grandfather set up a number of companies, including 13 companies incorporated in Hong Kong (the “Companies”).

10.  Each of the Deceased and Grandfather is a 50% shareholder in 11 of the Companies. The Deceased has a majority shareholding and a minority shareholding in each of the other 2 companies respectively.

11.  Following Grandfather’s resignation as director in 1993, the Deceased and the Plaintiff became the directors of the Companies.

12.  Shouson Mansion Limited, which is one of the Companies, is the registered owner of a landed property known as Block D, 28 Shouson Hill Road, Hong Kong (“Shouson Hill Property”). Prior to 2006, the Deceased used to reside part of the year in Hong Kong. The Shouson Hill Property was maintained as her private residence up to the time of her death. As one of her homes, the Shouson Hill Property contained papers and personal effects belonging to the Deceased.

13.  Gleany Mansion Limited, which is also one of the Companies, is the registered owner of a landed property known as 28 Arbuthnot Road, Central, Hong Kong (also known as 9 Glenealy), an 8-storey building of both commercial and residential uses (“Arbuthnot Road Building”). Prior to 2006, the 5^th floor of the Arbuthnot Road Building was used by the Deceased as her personal office.

14.  The Plaintiff had a close relationship with the Deceased, who took keen interest in his upbringing and had always treated the Plaintiff as if he were her son. In addition to enjoying her affection, the Plaintiff also enjoyed the trust and confidence of the Deceased, who invited him to relocate from the Mainland PRC to Hong Kong in 1981 and entrusted him to assist her with the management of the Companies ever since.

15.  In contrast, Collin did not enjoy a close or even cordial relationship with the Deceased.

16.  In the 1970s, the Deceased and Collin had a serious disagreement in relation to Collin’s intended marriage with Tay Beng Chuan (“Tay”). The Deceased was of the view that Tay’s decision to divorce his then wife at the time and to marry Collin was motivated by the desire to have a share in the wealth of Collin’s family. The disagreement resulted in a serious breakdown of the relationship between the Deceased and Collin and ended up in Collin leaving the Deceased and eloping with Tay.

17.  Collin was initially a director of 9 of Companies. Following the breakdown of her relationship with the Deceased, Collin was no longer entrusted by the Deceased with the management of the Companies. Since 1976, Collin ceased to be a director of any of the Companies and ceased to occupy any position in the Companies.

18.  As a consequence of the breakdown in their relationship, the Deceased had taken steps to exclude Collin from her affairs (including the affairs in the Companies).

18.1 Between June and October 1976, the Deceased caused the name of 8 of the Companies to be changed with the effect of removing the name “Collin” therein.

18.2 On 13 March 1984, the Deceased further caused the name of the company originally known as “Collin Holdings (Hong Kong) Limited” to be changed to “Lee Tat (Singapore) Limited”.

18.3 The Deceased had mentioned her disagreement with Collin repeatedly to her family members, including when she was dealing with Grandfather’s funeral arrangements in Shanghai in 1993 and when she visited Hong Kong and stayed with the Plaintiff.

18.4 There was a lengthy period during which the Deceased and Collin were not even on speaking terms. Although in the 1990s through the effort of mediation by well-informed third parties, the Deceased and Collin resumed contact with each other, there was never any full reconciliation between mother and daughter. The Deceased remained steadfast and resolute in (a) her resentment of Tay and his elopement and marriage with Collin and (b) her belief that Tay only married Collin for her family’s wealth.

18.5 During her lifetime, the Deceased repeatedly instructed the Plaintiff not to allow Collin to intermeddle with the affairs of the Companies. The Deceased also mentioned to the Plaintiff on many occasions during her telephone calls between 2006 and 2015 that she would not want Collin or Tay (whom the Deceased referred to as a rogue “流氓”) to inherit her wealth, including her interest in the Companies.

19.  However, it is important to note that since 2006, the Deceased took to residing year-round in Singapore and left the day-to-day management of the Companies with the Plaintiff. Another material fact is that the Plaintiff is, at all material times, in charge of all the papers in relation to the management of the Companies herein in Hong Kong.

20.  As the Deceased remained a shareholder and a director, the Plaintiff had always followed her wishes and instructions in the management of the Companies. During the Deceased’s absence from Hong Kong, the Plaintiff remained in close contact with the Deceased, usually through telephone calls and occasionally by letters.

21.  The Plaintiff pleads that in around 2015, the Deceased told him by way of telephone calls and on many occasions that she had made a will. The Deceased told the Plaintiff that her will was drafted by a lawyer of Indian origin named “Mr Brown” in Singapore. However, the Deceased did not tell him the full name of the said “Mr Brown” or the contents of the will. Nor did the Deceased tell him when her will was executed or where her will was kept. Mr Yin for the Plaintiff sensibly agrees that it is unlikely that the Deceased would have chosen to keep her will, if indeed there is one, in Hong Kong. There is no evidence that the Deceased had been back to Hong Kong since 2015.

22.  I have no doubt that the Plaintiff had a very close relationship with and had the trust and confidence of the Deceased. It is the Plaintiff’s case that the Deceased personally told him that she made a will, even though the will cannot be located at this stage. It is significant, in my view, that it is not the Plaintiff’s case that he had been told that he was named as a beneficiary under the will.

23.  What is dear and important to the Plaintiff is that a thorough search be taken out for the Deceased’s will which he takes the strong view that the Defendants had not carried out. Thus, the Plaintiff proposed the appointment of an independent person to be an administrator pendente lite (“APL”) for the purpose of conducting a thorough search for the Deceased’s will. The proposed appointment of APL was expressly mentioned in SOC §28 and in the correspondence shortly after the commencement of this action.

24.  I take from Mr Yin’s very helpful skeleton submissions and his oral submissions that the Plaintiff’s case is that whilst the Singapore Grant and the Hong Kong Grant were applied for and obtained by the Tay Children on the basis that the Deceased had died intestate, they had not made all necessary searches and inquiries in ascertaining whether the Deceased made a will before applying for the said grants.

25.  Prior to the obtaining of the Singapore Grant and the Hong Kong Grant, the Tay Children never made any inquiries with the Plaintiff as to whether the Plaintiff was aware that the Deceased made a will or where it might be found, even though the Plaintiff was the Deceased’s closest relative in Hong Kong and a director of the Companies in which the Deceased had a substantial shareholding.

26.  The Tay Children did not make any search amongst the Deceased’s belongings in Hong Kong prior to their applying for the Singapore Grant and the Hong Kong Grant. In particular:

26.1 The Deceased maintained at least a safe and a cabinet in the Shouson Hill Property. Despite their knowledge that the Shouson Hill Property was the Deceased’s former residence and last known address in Hong Kong, the Tay Children made no attempt to approach Shouson Mansion Limited for the purpose of searching the Deceased’s belongings in the property.

26.2 The Deceased kept a lot of papers in her personal office on the 5^th floor of the Arbuthnot Road Building, which has been put into storage together with other documents concerning the Companies. The Tay Children made no attempt to approach Glenealy Mansion Limited for the purpose of searching for the papers left by the Deceased in her personal office.

26.3 The Deceased also maintained a safe deposit box with HSBC (“HSBC Safe Deposit Box”) since at least 1997. The Tay Children did not inspect the HSBC Safe Deposit Box, which was not listed in the Schedule of Assets and Liabilities of the Deceased annexed to the Hong Kong Grant. Whilst the Defendants subsequently managed to open the HSBC Safe Deposit Box on 11 August 2025 (i.e. after the commencement of this action and the Striking-Out Summons) and did not find any will therein, it cannot be disputed that the Tay Children did not inspect the HSBC Safe Deposit Box at the time when they applied for the Singapore Grant and the Hong Kong Grant.

27.  In applying for the Hong Kong Grant (by way of resealing the Singapore Grant), the Tay Children had represented to the Probate Registry that the Deceased died intestate (which was also the basis upon which they had obtained the Singapore Grant) when there was no proper basis for making such a representation given that they have failed to discharge their duty in making the necessary searches and inquiries in ascertaining whether the Deceased made a will. As such, the Tay Children have failed to discharge their duty as applicants for the Hong Kong Grant which was made on an ex parte basis.

28.  In the premises, the Hong Kong Grant ought to never have been granted and it ought to be revoked under section 33(1) of the Probate and Administration Ordinance (Cap 10) (the “Ordinance”).

29.  Apart from the conversation between the Deceased and the Plaintiff set out above, the Plaintiff also pleaded the following matters in support of his case that there exists a valid and subsisting will of the Deceased.

29.1 The Deceased was a lady of strong character who was used to having things her way. She did not take kindly to acts of defiance of her wishes and any such conduct would not be forgotten or forgiven. In view of (a) her bitter resentment of Tay and his elopement and marriage with Collin and (b) her belief that Tay only married Collin for her family’s money, it is inconceivable that the Deceased would have omitted to take the necessary steps to prevent Tay and Collin and their offsprings from ever laying their hands on her money.

29.2 The Deceased also had ample access to legal advice. She had (a) carried out various acts of administration as the sole executrix of Grandfather’s estate over a long period of time which required working with lawyers and (b) pursued various legal proceedings in Singapore either in her capacity as the sole executrix of Grandfather’s estate or in her personal capacity. She was also a sophisticated businesswoman. The Deceased must have known that the only way to prevent Tay and Collin and their offsprings from laying their hands on her money after her death was to make a will such that Collin and her spouse and descendants would be excluded from the line of succession to the Estate.

29.3 Further, given the substantial value of the Estate (in the amount of SG$ 1,907,067,706.39), it is inherently improbable that the Deceased would have died without leaving a will.

30.  Whilst the Deceased’s will has not yet been found and the precise contents of the will is presently unknown, the only reasonable inference to be drawn from the available evidence is that the Deceased’s purpose in making a will was to exclude Collin and her spouse and descendants from the line of succession to the Estate. As one of the Deceased’s nephews, the Plaintiff would be amongst those who are next in the line of succession to the Estate once Collin and her spouse and descendants have been passed over. It is also reasonable to infer that the Plaintiff would likely have been named as a beneficiary or an executor (or both) in respect of the Estate (or part thereof) under the Deceased’s will, having regard to the fact that the Plaintiff has all along been entrusted to look after her assets in Hong Kong and that he was treated as a son by the Deceased.

31.  The Plaintiff also pleaded his intention to apply for the appointment of an APL under s 40 of the Ordinance for the purposes of, inter alia, conducting all searches and inquires as are necessary to discover the will left by the Deceased.

PROCEDRUAL HISTORY

32.  The Plaintiff commenced this action on 27 June 2025.

33.  On 9 July 2025 (i.e. shortly after the commencement of the action and the acknowledgment of service by the Defendants), the Plaintiff wrote to the Defendants seeking their confirmation as to whether they are agreeable in principle to the Plaintiff’s proposal of appointing an APL. The Plaintiff also informed the Defendants that a solicitor with the appropriate experience and qualification had agreed to be appointed as the APL.The Defendants did not respond to the said letter.

34.  On 7 August 2025, the Defendants took out the Striking-Out Summons on the grounds that (a) there is no reasonable cause of action; (b) the SOC is frivolous and/or vexatious; and (c) the SOC is an abuse of process of the Court.

35.  On 11 September 2025, the Plaintiff took out the APL Summons whereby the Plaintiff seeks an order that Ms So Wen Yin Yvonne, a practising solicitor, be appointed as the APL of the Estate pending the final determination of this action.

36.  On 25 September 2025, the Plaintiff commenced an action in Singapore against the Tay Children seeking to revoke the Singapore Grant (“Singapore Revocation Action”) on grounds similar to those pleaded in the present action.

37.  On 9 October 2025, in view of the Striking-Out Summons, Master J Wong ordered that the APL Summons be adjourned sine die with liberty to restore.

38.  On 5 January 2026, the Plaintiff took out the Leave Summons seeking leave to file the finalised draft the Plaintiff’s 3^rd affirmation, affirmation of Yiu Ka Wing and affirmation of Yiu Ka Wah.

LEGAL PRINCIPLES

39.  The general legal principles on striking out of pleadings are well-established. I accept Mr Yin’s submission that it is only in plain and obvious cases that the Court should exercise its summary powers to strike out any pleading under O 18 r 19. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the Court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the Court will strike it out: Hong Kong Civil Procedure 2026, §18/19/4.

40.  A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered. So long as the statement of claim discloses some cause of action, or raise some question fit to be decided by a judge, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out: Hong Kong Civil Procedure 2026, §18/19/5.

41.  No evidence shall be admissible on an application under O 18 r 19(1)(a) (i.e. the pleading discloses no reasonable cause of action): RHC O 18 r 19(2).

42.  A proceeding is frivolous when it is not capable of reasoned argument, without foundation, or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides: Hong Kong Civil Procedure 2026, §18/19/7.

43.  The term “abuse of the process of the Court” connotes that the process of the Court must be used bona fide and properly and must not be abused: Hong Kong Civil Procedure 2026, §18/19/9.

44.  Insofar as a revocation or probate action is concerned, Section 33(1) of the Ordinance provides that:

“Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.”

45.  A judgment in a probate action is by nature in rem. It is thus incumbent on all those who have rival claims to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, rather than on a piece-meal basis. The Court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate: Re Estate of Chiang Chen Yuen (Deceased) [2025] 2 HKLRD 1243 at §18 (H Au-Yeung J).

46.  The Court’s function in a probate action is inquisitorial: Re Estate of Li Lam Cheung (Deceased) [2025] 4 HKLRD 391 at §20 (Chow JA).

47.  I also accept that judges in Hong Kong (including judges in charge of probate matters) have consistently highlighted the duty to make all necessary inquiries by an applicant for grant of letters of administration on the basis that the deceased died intestate. This is unsurprising because absent a thorough and exhaustive search for a will there would not be any proper basis for the applicant to put forward the assertion that the Deceased had died intestate and obtain a grant on that basis.

48.  In Re the Estate of Yeh Lien Teh, HCMP 1809/2008, 8 October 2008, Lam J (as he then was) held at §§7-8 that:

“7. In my judgment, even though the application was made without benefit of legal advice, it behoves an applicant for a grant, whether by way of probate or letters of administration, to exercise due diligence in the making of affirmation in support of his or her application for a grant. Therefore, if an applicant comes to the Probate Registry to apply for grant on the basis that the deceased died intestate, a duty falls upon such applicant to make all necessary inquiries within his or her power to ensure that the deceased had not made any will prior to his death. If there were other relatives, it is not enough for an applicant to make a search amongst the belongings of the deceased by himself or herself and find no will. In my view, it is the duty of such applicant to make inquiries with those other relatives as well to find out whether the deceased had made a will.

8. I appreciate there could be cases where, notwithstanding such inquiries having been made, a will was not discovered at the time of the application but emerged subsequently. However, in the present case, on the materials before me, I have no explanation from the Applicant with regard to the steps she took in terms of inquiries with her siblings about the existence or non-existence of the will.” (emphasis added)”

49.  In Chung Chiu Hing v The Personal Representative of Law Sam, Deceased, HCMP 2384/2011, 9 June 2017, B Chu J held at §61 that:

“61. Normally, when an intended applicant applies for letters of administration in relation to the estate of a deceased said to have died intestate, the applicant has to prove intestacy, which includes evidence that a search for a will had been made among the deceased’s belongings and in particular that an inquiry from the Law Society had been made, to make sure the deceased had not made a will. This is because a search at the Probate Registry may not be sufficient, since in a case where the deceased had made a will leaving everything to a beneficiary who may not be a next of kin, eg a named charity, the beneficiary may not be aware of his entitlement until the will is found.” (footnotes omitted and emphasis added)

50.  It is the duty of the applicant for grant to carry out a diligent search to see if the deceased has made a will. By diligent search, it does not suffice for the applicant to say that he or she finds no will upon search amongst the belongings of the deceased. The applicant is duty bound to make all necessary inquiries within his or her power to ensure that the deceased had not made any will. That includes inquiry with the family members and relatives of the deceased who are reasonably supposed to have information in this respect. It is only when the applicant could not locate any will of the deceased after such search and enquiry that he or she will be in a position to depose to the effect that the deceased died intestate for the purpose of the application for the grant: Re the Estate of Lam Choi Bo Ming [2021] HKCFI 3314 at §32 (DHCJ Leung (as he then was)).

51.  In Re the Estate of Kwok Mei Lung [2020] HKCFI 343, Wilson Chan J reaffirmed the duty to make all necessary enquiries to ascertain whether the deceased left a will (§§45-46) and held that the discharge of such a duty is required by the proper administration of justice (§47). It was also held that an application for a grant of letters of administration is an ex parte application and as such the applicant is under a duty of full and frank disclosure (§53).

52.  Non-disclosure of material facts in an ex parte application for a grant of letters of administration is a well-established ground for revocation under s 33(1) of the PAO: Re Estate of Wong Yuen Leong [2012] 2 HKLRD 124 at §10 (Poon J (as he then was)).

ANALYSIS AND DETERMINATION

53.  I agree with the legal propositions advanced by Mr Yin. However, I am of the view that the antecedent question is whether the Plaintiff has the relevant locus standi to commence this action. Mr Yu SC submitted that with no interest in the estate, the Plaintiff has no locus standi under s 33 of the Ordinance to seek a revocation of the Hong Kong Grant. I agree.

54.  A party with no interest in the estate, not being a “party interested” in the Deceased’s estate, has no right to invoke s 33 of the Ordinance to apply for a revocation of a grant of administration (See: Leung Kit-Hing Doris v Cho Sik Han Yvette & Anor (CACV 67/2013, unreported, 12 June 2015) at §§2-3, 12, 24, per Lam VP (as he then was). The applicant’s claim was struck out by the master on the basis that it was hopeless and vexatious, a decision upheld by both the judge and the Court of Appeal (§§2-3).

55.  Order 76 r 2 of the Rules of the High Court (Cap 4A) requires that a writ beginning a probate action be indorsed with a statement of the nature of the plaintiff’s interest in the estate. The purpose is to ensure that proper consideration is given to the locus and interest of the parties before commencement of a probate action (See: Re Estate of Cheng Yung [2011] 2 HKLRD 661 at §18, per Lam J (as he then was)).

56.  Mr Yu SC for the Defendants submitted that without strict adherence to the locus requirement, any busybody would be at liberty to unduly vex, and interfere with, the finality and administration of a grant. As observed by Chow J (as he then was) in Fok Po Nam v HSBC Trustee (HK) Ltd [2018] 1 HKC 567 (in the context of locus to enter a caveat):

“26. It cannot, I believe, have been the intention of the legislature that a person who does not have, or assert, any interest in the estate of the deceased should be entitled to be given prior notice of the sealing of a grant in respect of the estate of the deceased, or be entitled to issue a summons for directions so that his demands can be considered or entertained prior to the sealing of the grant, thereby enabling or permitting any busybody to interfere in the process of applying for and obtaining a grant of representation by the proper personal representative of the deceased.” (Emphasis added.)

57.  On the facts of the present case, I do not consider the Plaintiff to be a busybody in a literal sense. I accept that he is genuinely interested in making sure that all necessary searches and enquiries were carried out to ascertain the existence of the Deceased’s will. However, the fact reminds that he does not presently have an interest in the estate of the Deceased. Importantly, in the SOC, he does not assert that he has an interest in the estate of the Deceased. In paragraph 24 of the SOC, the Plaintiff merely asserts that it is “reasonable to infer that the Plaintiff would likely have been named as a beneficiary or an executor (or both) in respect of the Estate…under the Deceased’s will.” (Emphasis added.)

58.  Mr Yin for the Plaintiff submitted that in §23 of the SOC, it is pleaded that as one of the Deceased’s nephews, the Plaintiff would be amongst those who are next in the line of succession to the Estate once Collin and her spouse and descendants have been passed over. In §24 of the SOC, it is further pleaded that the Plaintiff would likely have been named as a beneficiary or an executor under the Deceased’s will since the Plaintiff has all along been entrusted to look after her assets in Hong Kong and that he was treated as a son by the Deceased. In short, the Plaintiff is not someone who is a stranger to the Deceased and has no obvious interest in the Estate at all. However, the point remains that the Plaintiff has not pleaded that he has a present interest in the estate of the Deceased. His pleaded interest, if any, is contingent or even speculative.

59.  I am of the view that it is crucial that in the conversations that the Plaintiff said he had with the Deceased, the Deceased never informed him that he was named as a beneficiary under her will. Whilst it is understandable that the Plaintiff has such an expectation, it is an entirely different matter to suggest that the Plaintiff has a positive case that he has a beneficiary interest in the estate of the Deceased. I note that that the Plaintiff’s case is that it is likely that he has an interest in the estate of the Deceased. Mr Yin for the Plaintiff has not cited any case to support the proposition that a likelihood of an interest or an expectation of an interest is sufficient to enclothe the Plaintiff with the necessary locus standi to commence this proceedings.

60.  I agree that issuing proceedings without locus standi is prima facie an abuse of process. (See: Chan WS & Anor v CC Bank [2022] 5 HKC 691 (CA) at [41]). Contrary to the Plaintiff’s case, there exists no rival claims in this probate action. There is no positive claim that the Plaintiff has an interest under the Deceased’s will (yet to be discovered). That should be the end of analysis.

61.  Secondly, I also agree that the failure to plead or locate a valid will is fatal to the Plaintiff’s existing claims as set out in the SOC. Whilst I appreciate that the Plaintiff is being put in a chicken and egg situation, the fact is that his plea that the Deceased did not die intestate depends on the existence of a properly executed will. I am of the view that a plea that the Plaintiff had been told that the Deceased had executed a will in Singapore at some point in time is not good enough. The Deceased might have changed her testamentary intention at a later stage. The is particularly the case given that the Deceased had move to Singapore for good since 2006.

62.  I accept the Plaintiff’s submission that the Deceased was a seasoned commercial woman and had a strong character. Given such personal attributes, I find it hard to believe that the Deceased would have executed a will and then left the parties herein to do a carpet search for the same.

63.  Mr Yu SC for the Defendants is correct in submitting that the Plaintiff has failed to plead even the material fact that a will exists (SOC §21 pleads, at the highest, it is “inherently improbable that the Deceased would have died without leaving a will”), much less any particulars thereof, including its terms (SOC §22 admits its “contents” are “presently unknown”) or the requisite components of a valid, duly executed will.

64.  The claimed relief, for “an order pronouncing for the last will…to be admitted to probate upon discovery of the same”, in my view, is problematic as it presumes the existence of a will. Mr Yu SC submitted that it is an abuse of the court’s process to start a case without solid foundation, hoping that something will turn up in the course of the proceedings, for example, in discovery or cross-examination: The New China Hong Kong Group Limited (in Creditors’ Voluntary Liquidation) & Anor v Ng Kwai Kai, Kenneth & Ors (HCA 519/2010, unreported, 11 February 2011), per Fok JA (as he then was) at §70.

65.  On a final analysis, it comes down to whether a plea that there exists a likelihood that the Deceased had made a valid and subsisting will before she died is good enough to stand against a striking out. I have duly considered Mr Yin’s submission that the Plaintiff has pleaded, and deposed to, (a) the breakdown of the relationship between the Deceased and Collin; (b) the Deceased’s strong and unforgiving character; and (c) the Deceased’s express intention to disinherit Collin as well as her husband and children. Importantly, Collin did not file any substantive evidence to contradict the Plaintiff’s case. On the contrary, the Plaintiff has adduced documentary evidence showing that (a) Collin ceased to be a director of any of the Companies since 1976; and (b) the Deceased caused the name of 9 of the Companies to be changed with the effect of removing the word “Collin” therein in the 1970s and 1980s.

66.  I have also considered that the Plaintiff has pleaded, and deposed to, the fact that the Deceased was a sophisticated businesswoman and had ample access to legal advice during her lifetime, having carried out acts of administration as the sole executrix of Grandfather’s estate and pursued various legal proceedings in Singapore. The Plaintiff also adduced the publicly available judgments concerning various proceedings commenced by the Deceased in Singapore. Mr Yin submitted that in these circumstances, the Deceased must have known that the only way to prevent Tay and Collin and their children from laying their hands on her money after her death was to make a will.

67.  Further, I have also considered in view of the size of the Estate, it is inherently improbable that the Deceased (who is herself the sole executrix named under a will made by Grandfather) died without leaving a will. As revealed in the Singapore Grant, the total value of the Estate as at the date of the Deceased’s death is over SG$1.9 billion.

68.  However, given the trust that the Deceased reposed on the Plaintiff, a copy of the Deceased’s will was not given to the Plaintiff and he was not even told the whereabouts or the content of the will. The Plaintiff has not been able to give details about the will except that it was executed in Singapore. I do not find it right to do a Sherlock Holmes’ work and conclude that the likely existence of a will is sufficient to ground this action.

69.  Thirdly, as to the claim on the failure to carry out all necessarily searches and enquiries, I am of the view that the matter has to be put in context. Whilst it is true that the Defendants have not asked the Plaintiff, it is the Plaintiff’s case that the relevant will was executed in Singapore. Mr Yin for the Plaintiff fairly agrees that it is unrealistic to expect the said will to be kept in Hong Kong whilst the Deceased was residing in Singapore and the will was said to be executed there. The fact remains that put it to the highest, the Plaintiff can only say that it is likely that the Deceased had executed a will.

70.  This Court has to approach the issue of all necessary searches and enquiries with some dosages of common sense. I note that the inspection of the HSBC Safe Deposit Box in August 2025 produces no will of the Deceased.

71.  In respect of the two premises, the Plaintiff at all material times manages the Deceased’s affairs and has access to the same. The Plaintiff had not said that he had once had sight of any will of the Deceased.

72.  The Plaintiff also fairly admits that the Tay Children would have had to seek access from the companies of which he is the sole living director (in essence, him) to conduct a search. If that is the real concern, the Plaintiff could have invited the Defendants to search for the will in the two premises to put the matter to rest. The Defendants have not said that they are not willing to carry out the necessary searches and enquiries in the two premises with the assistance of the Plaintiff. Though, on the facts of the present case, I have serious doubts about the utility of such searches.

73.  Mr Yin submitted that the important point to note is that the present case is not one where the applicant has already raised a prima facie case of intestacy by discharging his duty to make a thorough and exhaustive search for a will before deposing that the deceased had died intestate in support of a grant on that basis such as to cast the burden upon the party seeking to set-aside the grant to show that the deceased has left a valid will at the time of her death.

74.  In terms of the evidence on the inquiries, Mr Yin submitted that the Tay Children have adduced no evidence that they made inquiries with any relatives of the Deceased to “ensure” that the Deceased had not made a will. Therefore, the Plaintiff has, at least, a prima facie case that the Tay Children have failed to discharge their duty in the application for the Hong Kong Grant.

75.  However, as far as Hong Kong is concerned, I am not sure what the Tay Children or the Defendants could have meaningfully done given that the alleged will was said to be executed in Singapore where the Deceased had resided for a substantial long period of time. There is also a pending Singapore Revocation Action.

76.  In the reply affirmations filed on 25 November 2025, the Tay Children affirmed that:

76.1 Following the Deceased’s death, they conducted a “thorough and diligent search amongst the Deceased’s papers and effects” at her home and her office in Singapore, but no will was found.

76.2 They conducted a search at the Singapore Wills Registry on 7 December 2015 and 3 November 2025 yielding a negative search result.

76.3 The Deceased “did not leave behind any documents or assets of value or importance” at the Shouson Hill Property and the 5^th Floor of Arbuthnot Road Building. Further, in 2006, the Deceased went back to Hong Kong with the Tay Children and Collin and “took back with her to Singapore all important items from Hong Kong that she wanted” from the Shouson Hill Property, the 5^th floor of the Arbuthnot Road Building and the HSBC Safe Deposit Box.

77.  Mr Yin objected the Defendants’ reliance on such evidence as they were surfaced in the reply evidence to which the Plaintiff has no chance to respond to the same. I am of the view that the Court should allow all relevant evidence to be filed and considered provided that there is procedural fairness and no prejudice is caused to the Plaintiff. Accordingly, I have allowed the Plaintiff’s further affirmations to be considered on de bene esse basis.

78.  Mr Yin submitted that on the alleged search conducted at the Deceased’s home and office in Singapore after the Deceased’s death, the Tay Children have provided no meaningful particulars, including important information such as the date and the duration of the alleged search. The extent of the alleged search is also highly questionable as it is a matter of documentary record that the Tay Children filed the application for the Singapore Grant on 15 November 2023 (i.e., only 4 days after the Deceased passed away on 11 November 2023). Bearing in mind that this alleged search was only raised in the last minute, the Plaintiff is certainly entitled to cross-examine the Tay Children on the veracity of their assertion at trial. However, I am not entirely sure it is incumbent upon the Tay Children to provide the date and the exact duration of such searches. I am not persuaded that such search must necessarily involve days and not hours. Hence, it is difficult to draw any inference that 4 days were insufficient to carry out all necessary searches and enquiries.

79.  As to the search at the Singapore Wills Registry, the Tay Children said that there was “no practical need to undertake a fresh will search at the Wills Registry immediately before applying for the Singapore Grant” because they had already done a search on 7 December 2015 when they were applying for a deputy appointment order for the Deceased on the ground that she was mentally incapacitated at that time.

80.  The Plaintiff does not accept these allegations. It is the Plaintiff’s evidence that he did not participate in the deputyship proceedings and was never served the relevant court papers before the Deceased’s death. As such, whatever findings which may have been made by the Singapore Court in relation to the deputyship proceedings cannot be binding on him. Further, the Deceased’s health did not deteriorate in the period of 2012 and 2015 as alleged by the Tay Children. From 2012 to 2019, the Plaintiff could still communicate clearly with the Deceased by telephone from time to time. Further, the audited reports of some of the Companies were still personally signed by the Deceased and posted back to the Plaintiff in 2019.

81.  However, there is no evidence to refute the Defendants’ evidence that they did carry out a search on 7 December 2015 and discovered no will of the Deceased. It is not the Plaintiff’s case that the Deceased made a new will after 7 December 2015. A new search was in fact done in 2025.

82.  In any event, I am sure this is a matter the Plaintiff can ventilate before the Singaporean Court in the Singapore Revocation Action.

83.  Mr Yin for the Plaintiff also submitted that the Tay Children’s evidence on the Shouson Hill Property, the 5^th Floor of the Arbuthnot Road Building and the HSBC Safe Deposit Box are at present no more than bare assertions and something on which P is entitled to cross-examine at trial. In this regard, the Plaintiff has adduced photographs showing the cabinet and the safe in the Shouson Hill Property and the files on the 5^th floor of the Arbuthnot Road Building. It is also the Plaintiff’s evidence that he has been residing at the Arbuthnot Road Building since 2005 and had no recollection of the visit in 2006 alleged by the Defendants. Insofar as it is suggested that the Plaintiff could have searched at the two landed properties in his capacity as director of the companies who own the properties, it overlooks the fact that the Plaintiff would be exposed to criminal liability for intermeddling with the Estate contrary to s 60J of the Ordinance if he were to interfere with the papers and belongs left behind by the Deceased once the Hong Kong Grant has come into force.

84.  I am of the view that the issue on the inspection of the HSBC Safe Deposit Box is spent. In relation to the files, documents, cabinets and the safe in the Shouson Hill Property and the 5^th floor of the Arbuthnot Road Building, I have addressed the same above. But as I said above, it is up to the Plaintiff to allow the Defendants to conduct searches and enquiries on the two premises. I can see why the Defendants find it unnecessary to do the same as it is unlikely that the will said to be in existence by the Plaintiff would be kept in Hong Kong. In other words, I do not find that there is a prime facie case of breach of duties in not carrying out all necessary searches on the two premises. Further, there is no evidence that the Plaintiff allowed the Defendants to search the two premises and the Defendants refused. In fact, it is the Defendants’ case that the Plaintiff imposed unreasonable restrictions even on their inspection of the HSBC Safe Deposit Box which I do not find necessary to go into the details.

85.  Fourthly, I also agree with Mr Yu SC that the Singapore Grant, made on the basis that the Deceased died intestate, operates in rem: Spencer Bower and Handley: Res Judicata (6th Edition) at §10.26. Absent any revocation of the Singapore Grant, the Hong Kong Grant, which was obtained on the basis of the Singapore Grant by the procedure of resealing under s 49 of the Ordinance, should not be revoked.

86.  Mr Yin submitted that the Plaintiff is precisely seeking to revoke the Hong Kong Grant and the Singapore Grant by the commencement of this action and the Singapore Revocation Action. As such, evidence can be admitted to impeach the Hong Kong Grant and the Singapore Grant in these revocation actions.

87.  However, I am of the view that unless and until the Singapore Grant is revoked, it cannot be said that the resealing under s 49 of the Ordinance is wrong and thus the Hong Kong Grant should be revoked. A practical issue is what happens if the Plaintiff fails in its Singapore Revocation Action. I am not entirely sure Hong Kong court should entertain another bite on the cherry by allowing the present action to proceed to revoke the Hong Kong Grant. On the other hand, if the Plaintiff succeeds in its revocation application in Singapore, then it follows that the Hong Kong Grant should be revoked.

88.  Finally, Mr Yu SC relies on the doctrine of abuse of process. It is submitted that not only is this the Plaintiff’s third, improperly constituted attempt to interfere with the Hong Kong Grant, but the claim is also made on the same basis as that which could, and should, have squarely been raised in the caveat proceedings prior to the Hong Kong Resealing (1^st Failed Attempt). Indeed, the Plaintiff’s asserted belief that the Deceased had made a will was raised before the Probate Registry (the 2^nd Failed Attempt). Having had full opportunity to do so, the Plaintiff failed to show cause against the Hong Kong Resealing. The Tay Children, having obtained the Hong Kong Grant (in spite of the Plaintiff’s multiple attempts to thwart it), are entitled to finality and certainty so that the estate can be duly administered its administration.

89.  The relevant principles on abuse of the process of the Court are well-established. As summarised by Ma CJ (as he then was) in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72. A party ought generally not to be permitted to raise in subsequent proceedings matters which that party could and should have raised in earlier proceedings: §82. Abuse may be found in the form of the other party being “vexed” or “unjustly harassed” by the subsequent proceedings: §83(3). The court is concerned with the balancing of interests, not just of the parties before it, but also other interests involved in the administration of justice: §83(5).

90.  It is submitted that following the Plaintiff’s caveat against the estate (the “Caveat”), a Warning to Caveator was served on the Plaintiff’s former solicitors on 15 January 2025, which expressly informed the Plaintiff of the 8-day deadline to enter an appearance and warned that, in default of the Plaintiff so doing, the court may proceed to issue the grant (the “Warning”).

91.  Despite having filed a Caveat, despite the Warning, and in breach of r 44(9) of the NCPR, the Plaintiff failed to enter an appearance to warning or to avail himself of the opportunity to show cause against the Resealing by the 22 January 2025 deadline. His only excuse, that he was not informed of the deadline (despite being represented), cannot hold water. Pursuant to r 44(11) of the NCPR, the Caveat ceased to have effect on 24 January 2025.

92.  The Plaintiff’s second, still improper, attempt to interfere with the Hong Kong Grant similarly failed. As with the present claim, it relied only on his asserted belief that the Deceased had left a will. On 10 March 2025, the Plaintiff (via his current solicitors) sought, but failed to obtain, leave under r 44(13) of the NCPR to file another caveat and/or an extension of time. In yet another breach of the requirements– specifically, to set out his interest in the estate – the enclosed draft Appearance to Warning merely asserted, with no particulars, “The Caveator believes that the Deceased has left a Will in which the Caveator is appointed as the executor”. Despite this, the Plaintiff’s solicitors demanded that “no grant in relation to the Deceased be sealed...until our client’s aforesaid application is disposed of”. No leave was granted by the Probate Registry.

93.  The abuse of the present claim for revocation stands out even more starkly when seen in light of the fact that, even if the Plaintiff had entered an appearance within time in the earlier caveat procedure, given his lack of interest in the estate, the Caveat would have been struck out for being frivolous, vexatious or an abuse of process: Re Wong Pui Tak Diana (HCCA1160/2013, unreported, 28 November 2013) at §§23, 25. Further, with the Plaintiff having had no right, then, in the application process for the Hong Kong Resealing, for his demands to be considered or even entertained.

94.  A fortiori, the Plaintiff cannot, on the same (lack of interest) basis now, acquire any (improved) right – nor can it be any less of an abuse for the Plaintiff – to interfere with the Hong Kong Grant, whose interests of administration demand finality. As a result of these proceedings, the administration of the Deceased’s estate has been further obstructed and delayed.

95.  On this ground of striking out, I am inclined to agree with Mr Yin as it is not the law that the only time to challenge the Hong Kong Grant is before the same is granted. After a grant is issued by Hong Kong Courts, any interested parties can still challenge the same in a proper probate action. I agree with Mr Yin that even assuming that the Defendants were right in contending that the issues raised by the Plaintiff in the present action “could and should have been raised in the Caveat Proceedings to show cause”, the Court would in all likelihood have directed the Plaintiff to commence a probate action for the purpose of revoking the Hong Kong Grant since those issues cannot be substantively resolved in the Caveat Proceedings themselves. In other words, the parties would have been put in the same position and would have to resolve their dispute in a probate action in any event even if the Plaintiff had shown cause within the time limit.

96.  I also accept that the Plaintiff is now over 80 years old. He has never married and has no children of his own. He does not have any need or desire to succeed to the Deceased’s wealth. The stance he takes in these proceedings is not motivated by greed. I accept that the Plaintiff sees it as his duty to make sure that all necessary searches and enquiries of the will of the Deceased are to be carried out properly. This is particularly so given that the Deceased personally told him that she had made a will, he considered it part of his duties as the Deceased’s maternal nephew and the person entrusted by her to manage the Companies for 30 years to investigate further about the will in order to ensure that the Deceased’s wish regarding the Estate would be faithfully carried out, rather than just accepting the Tay Children’s bare assertion that she died intestate.

97.  However, for all the reasons stated above, I am of the view that the Plaintiff lacks the proper locus standi to maintain this action and a likelihood of an interest in the estate of the Deceased is not sufficient to ground the causes of action as pleaded.

98.  Having said that, for the avoidance of doubt, I like to make clear that nothing said or analyzed in this Decision should be taken as against the Plaintiff in his Singapore Revocation Action.

DISPOSITION

99.  I make an order that the Statement of Claim in this action be struck out and the action be dismissed.

100.  I also make a costs order nisi, that the Plaintiff is to pay the costs of and occasion by the Striking-Out Summons to the Defendants with a certificate for two counsel, to be taxed on a party-to-party basis if the parties cannot reach any agreement. This costs order nisi will be made absolute within 14 days from the date hereof unless an application is taken out to vary the same within the 14-day period.

101.  Finally, it remains for me to thank counsel for their helpful assistance.