LI YAN HUN formerly known as LI YAU FOON v. LI YAU CHUN AND OTHERS

HCAP 25/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 25 of 2015

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JUDGMENT

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1.  This is the trial of the probate action on affidavit evidence as directed by Master Lai in his order dated 7 April 2016 made pursuant to Order 76, rule 6(3) and (5) of the Rules of the High Court, Cap 4A, Laws of Hong Kong.

2.  The Deceased died at the Princess Margaret Hospital on 22 September 2009 at the age of 91.  She had apparently executed her last Will dated 14 August 2001 which was prepared by a firm of solicitors in Hong Kong (“the Will”).  The Will, though in English, was interpreted to the Deceased who appeared to perfectly understand and approve of its contents and she placed a cross mark as her signature.  The entire process was witnessed by a solicitor Mr Roderick Kam Yuen Yeung and a clerk Madam Amy P Y Mak who appended their signatures in attestation.

3.  The Will appointed one daughter of the Deceased, the plaintiff herein, as executrix and named two grandchildren Mak Ka Yan and Mak Ka Chun as the sole beneficiaries as tenants in common in equal shares of and in the Deceased’s estate and interest in a real property known as Flat A, 6/F, Tower I of Block A, Walton Estate (now aka Tak Fook House) after payment of the Deceased’s just debts funeral and testamentary expenses.

4.  The present Writ was issued on 4 September 2015 by the plaintiff as executrix against originally six defendants.  The 1^st, 2^nd and 3^rd defendants were daughters of the Deceased. The 4^th and 5^th defendants were sons of the Deceased. The 6^th defendant was a grandson of the Deceased.  By the aforesaid Order of Master Lai, leave was granted to the plaintiff to discontinue the claims against the 5^th defendant.  This trial is thus against the 1^st, 2^nd, 3^rd, 4^th and 6^th defendants (“the five remaining defendants”).

5.  Prior to the commencement of these proceedings, the respective defendants had filed certain caveats which ceased to have effect pursuant to rule 44(12)(a) of the Non‑Contentious Probate Rules (Cap 10A) (“NCPR”).  There are remaining five caveats, each in relation to the five remaining defendants for which they have each filed an Appearance to Warning. The Appearance to Warning filed by each of the remaining five defendants stated in identical terms that “they have queries on the validity of the last Will of the Deceased dated 14 August 2001 and whether the said Will was the wishes of the Deceased”.

6.  Although the plaintiff bears the legal burden of proving the Will, each defendant bears the evidential burden of putting forward relevant ground and evidence of challenge to the validity of the Will.  The five remaining defendants however have each failed to enter an Acknowledgment of Service of the Writ.  Due service of the Writ on each of them has been proven by an Affirmation of Service of Cheng Suet Ying filed 11 December 2015.

7.  The plaintiff filed an Affirmation on 18 March 2016 in support of an application for trial of this action by affidavit evidence.  The said affirmation exhibited, inter alia, a true copy of the Will.  It also showed that an application for grant had duly been made to the Probate Registry.  Due service of the summons and the said affirmation of the plaintiff on each of the five remaining defendants has been proven by the 2^nd Affirmation of Cheng Suet Ying filed 1 April 2016.  None of the five remaining defendants took any step to file any affirmation in opposition of the plaintiff's affirmation.

8.  By a letter dated 26 April 2016 from the court to each of the five remaining defendants, the latters were asked to attend the Registry on 11 May 2016 for the fixing of a date for the trial.  None of them attended the Registry at the appointed date and time.  Trial of this action was accordingly fixed to be heard today.  In compliance with paragraph 5 of Master Lai’s Order mentioned aforesaid, the plaintiff informed each of the five remaining defendants of the trial date fixed by letters all dated 14 June 2016.  This is proven by the 3^rd Affirmation of Cheng Suet Ying filed 5 July 2016.

9.  None of the five remaining defendants appear in court today.  No ground has ever been put forward to question the validity of the Will or the wishes of the Deceased.  The evidence filed by the plaintiff remains unchallenged.  The Will satisfies all requirements of the Will Ordinance.  The contents are simple and straight forward.  The Will was attested by a solicitor of this court and his legal clerk.  Due execution is in any event presumed in the absence of contrary evidence or suggestion.  The Will was made a number of years before the demise of the Deceased.  There is no basis to question the then testamentary capacity or intention of the Deceased.

10.  In the circumstances, I am satisfied that the plaintiff has satisfied the legal burden of proving the Will.  I will grant orders in terms of the draft order presented to me save that costs should be taxed on party‑and‑party basis.  In particular, I make the order of costs against the five remaining defendants because I consider their conduct unreasonable.  If they had no genuine intention of pursuing their opposition against the grant of probate, they should not have filed an Appearance to the warnings putting forward objections that they subsequently provided no particulars or evidence. Their conduct unnecessarily prolonged the process and caused the plaintiff to incur more legal costs.