LAM WING LEUNG THE EXECUTOR OF THE LAST WILL OF LAM YIM MAN DECEASED v. KWONG KIT OI

HCAP 31/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 31 OF 2015

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the plaintiff for further and better particulars on the Defence and Counterclaim.

BACKGROUND

2.  On 20 November 2015, the plaintiff commenced the present probate action.  In his Statement of Claim, he said that the Deceased died on 29 April 2015.  By the will dated 29 July 2013 (the “2013 will”), the plaintiff was appointed the sole executor for the estate (the “Estate”) of the Deceased.  The application for probate under HCAG 11615/2015 filed by the plaintiff could not be processed because the entering of an earlier caveat against the Estate.  Upon being warned, the defendant replied that she was the niece of the Deceased and would be one of the beneficiaries of the Estate if the Deceased died intestate.  The plaintiff disagreed. When the defendant later entered her appearance, she alleged that she was the sole executrix in a will dated 8 March 2005 (the “2005 will”).   By the probate action, the plaintiff asked, inter alia, for a declaration that the 2013 will in solemn form.

3.  The defendant contested the proceedings and lodged her Acknowledgement of Service[1] on 26 January 2016. She further filed her Defence and Counterclaim on 22 June 2016. She spent some time explaining the family background of the parties, including that the Deceased was a bachelor and did not have any issue.  His parents and other siblings all predeceased him.  The plaintiff was one of the nephews of the Deceased and the defendant, one of his nieces.  In 2009, the Deceased was admitted to elderly home due to deteriorating physical and mental capacity.  The defendant challenged the validity of the 2013 will because the Deceased lacked the requisite testamentary capacity.  The defendant had been told by the Deceased of the 2005 will.  She had a copy of it but had so far not been able to locate the original[2] of the 2005 will.  She counterclaimed for a declaration against the validity of the 2013 will and letters of administration[3] should be granted to her.

4.  The plaintiff then sought further and better particulars on the Defence and Counterclaim.  The defendant filed her answers on 12 August 2016.  However, the plaintiff was not satisfied with the answers.  The plaintiff therefore took out the present summons on 18 August 2016.  The solicitor acting for the plaintiff filed a short supporting affirmation.  He said that the defendant, in effect and in principle, contended that the particulars sought involved matters of evidence and was unnecessary.  However, the particulars would enable the plaintiff to know the case he had to meet and to prepare his evidence at trial.  The defendant should therefore be ordered to answer the requests.

5.  The solicitor acting for the defendant filed an affidavit to oppose the application. The issues of the probate action were said to be the mental capacity of the Deceased when he executed the 2013 will and who should be appointed as administrator in case that the court would held that the Deceased died intestate.  He further spent some time explaining the structure of the Defence and Counterclaim as well as why the requests were largely targeted at unnecessary irrelevant and peripheral evidence.

6.  No reply affidavit was filed.

7.  In the meantime, the plaintiff also filed his Reply and Defence to Counterclaim.  The plaintiff also set out, in his perspective, the family background of the Deceased, including that he had been accepted recognized and treated by the adopted son of the Deceased.  Among other things, the defendant, but not the plaintiff, maintained a close relationship with the Deceased throughout his life time.  When the Deceased executed the 2013 will, he was of sound mind memory and understanding. The court should hold the 2013 will to be valid. In the alternative, even if the Deceased died intestate, the plaintiff was a suitable person to be the administrator of the Estate, but not the defendant.

8.  Parties appeared before me on 24 November 2016 for the substantive argument.  Mr. John Ip of Messrs. John Ip & Co. acted for the plaintiff and the defendant was represented by Mr. Ken To of Counsel, instructed by Messrs. Hasting & Co.  Upon hearing from them, I adjourned my decision to be handed down. Here it is.

PRINCIPLES RELATING TO FBP OF PLEADINGS

9.  There is no argument between parties as to the principles governing when further and better particulars of pleadings should or should not be ordered by the court.  As a starting point, they can be found from paragraph 18/12/1 of the HKCP 2017 at page 430:-

“Effect of rule – The requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without suprises and, as far as possible, so as to minimize costs. In Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co. Ltd [1994] 2 H.K.C. 264 Bokhary J.A. said at 269E‑270E that the functions of properly particularized pleadings are as follows:

1) to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

2) to prevent the other side from being taken by surprise at the trial;

3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

4) to limit the generality of the pleadings, the claim and the evidence;

5) to limit and define the issues to be tried, and as to which discovery is required;

6) to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).

It is not the function of particulars to take the place of necessary averments in the pleading, nor “to state the material facts omitted … in order by filling the gaps, to make good an inherently bad pleading” (per Scot L.J. in Pinson v Lloyds, etc., Bank [1941] 2 K.B. 72 at 75).

The purpose of pleadings is not to play a game at the expense of the litigants but to enable the opposing party to know the case against him. There is a tendency to forget this basic purpose and to seek particulars which are not necessary when in truth each party knows the others’ case (Trust Securities Holdings v Sir Robert McAlpine & Sons Ltd, The Times, December 21, 1994, CA).

…..”

10.  After CJR, one of course remembers O.18 r.12 (3B), namely:-

“No order shall be made …unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

11.  In the context of probate action, one also notes paragraph 18/12/47 of the said HKCP:-

“(46) Unsoundness of mind and undue influence – In probate actions, particulars of the nature of the unsoundness, and of the character of the undue influence and the acts alleged in the exercise of it, with necessary dates must be given (see O.76, r.9(3) ), but not of the names of the persons present (Re Shrewsbury[1922] P.112)…”

ISSUES IN THE ACTION

12.  With the existing pleadings, I agree that 2 issues can be identified.

(a) When the Deceased executed the 2013 will, did he have the necessary testamentary capacity[4]?

(b) If the answer to (a) is “no” and the Deceased died intestate in the circumstances, the court will see to whom the letters of administration should be issued, the plaintiff or the defendant.  The court will therefore consider the complaints made against each other are proved or not, and if so, whether they are relevant considerations.

13.  With the above principles and issues identified, upon consideration, I have decided to dismiss the application, save to allow the last 2 requests.

14.  The plaintiff made 32 requests.  In the answers provided by the defendant, she did answer requests 5(2), 7(1) and 30.

15.  In the skeleton of Mr. Ip, the plaintiff decided to drop some of the requests.  They are requests 2, 5(2), 27 and 30.

16.  Regarding the remaining ones, the defendant took the general view that the requests concern evidence.  The plaintiff had been informed of the case to meet, and there was no genuine need to clarify the nature of the defendant’s case to ensure fairness and to avoid wasting costs.  The further and better particulars sought were unnecessary and peripheral.  The plaintiff had no difficulties in responding to the defendant’s case.

17.  The plaintiff disagreed.  At the hearing, Mr. Ip argued that the requests were needed and he mainly relied on functions (1) and (3) to (5) of those identified in the case of ADS v.Wheelock Marden.

18.  For the present purpose and convenience sake, I will classify the requests into 5 categories.

(a) Background

19.  In paragraphs 2 to 8 of the Defence and Counterclaim, the defendant laid down some background information of the family and went on until the Deceased moved into the elderly home in 2009.  By requests 1, 3 to 5, the plaintiff sought various details on the case of the defendant, including when and how the Deceased had been looked after over the years.

20.  In my view, such requests must be rejected.  Given the fact that there are only 2 issues at the trial, all these “background facts” are to be peripheral in nature.  One of course does not forget about the general observations in probate cases that parties (sometimes even their legal representatives) tend to spend too much time and efforts in allegations against each other when they are not relevant for the purpose of deciding the issues before the court.

21.  Further, as pointed out by Mr. To, the requests could not be necessary either for disposing fairly of the cause or matter or for saving costs when one looked at the Reply and Defence to Counterclaim having filed.  Paragraphs 2 to 10 of such document form the background case of the plaintiff in reply to those of the defendant.  The plaintiff made a substantial response.  Not only the case of the defendant was (generally) denied, he also gave a very detailed account of the facts on his own.

(b)     Condition of mind of the Deceased

22.  The defendant started to describe, in paragraphs 9 to 12 of the Defence and Counterclaim, both the physical and mental condition of the Deceased from 2011 up to the time when he “executed” the 2013 will.  At paragraph 11 thereof, 9 particulars were provided to cater for the specific requirement in probate action wherein the mental capacity of the testator was an issue.

23.  The plaintiff raised requests 6 to 17 over this area.  They sought, inter alia, details of the three admissions of the Deceased into the elderly home as well as the “particulars” on the “particulars” having already been provided by the defendant.

24.  Upon reviewing the case of the defendant as per her Defence and Counterclaim, I take the view that she has complied with the requirement under our rules.  Material facts of her case were pleaded.  Sufficient particulars of her case were given as to why the Deceased lacked the requisite testamentary capacity and was not of sound mind, memory and understanding when he executed the 2013 will.  By the requests, the plaintiff went beyond our rules of pleadings.  He in fact sought evidence of the case of the defendant.  However, the plaintiff has to wait a little longer.  Parties will soon move to the stage of discovery in which the defendant will make clear what medical records she is relying on to show the mental capacity of the Deceased.  He will also be given to understand who will testify to support such case when witness statements are to be exchanged.

(c)      Conduct of the plaintiff

25.  From paragraphs 13 to 17, the defendant went on to set out events after the execution of the 2013 will, including that the plaintiff took advantage of the condition of the Deceased by set up a joint account with the Deceased, market for lease or sale of a property owned by the Deceased through a power of attorney and transfer of a property to the son of the plaintiff by way of gift.

26.  In the Reply and Defence to Counterclaim, the plaintiff said that these allegations were immaterial and irrelevant to the validity and efficacy of the 2013 will.  They were further denied and the plaintiff went on to state his own case to explain the events leading to the alleged events. In short, it was all done on the own initiative and instructions of the Deceased himself.

27.  Under requests 18 to 26, the plaintiff nonetheless sought details of the case of the defendant in her Defence.  In these respect, it is indisputable that the plaintiff not only denied the allegations of the defendant. He indeed had positive cases to run at trial.  In the words[5] of Mr. Ip, the plaintiff rebutted the defendant’s allegations of misconduct, impropriety and/or “undue influence” on the plaintiff’s part towards the Deceased and his assets, and by the plaintiff’s Defence to Counterclaim, the defendant’s allegations of his unsuitability to be an administrator are refuted by reasons of the facts and matters set out therein.

28.  However, instead of waiting to see what evidence the defendant will come up at trial to try to prove the allegations against him, the plaintiff wanted them right away.  It is premature.  The discovery and exchange of witness statements will take place in due course.  No order for further and better particulars is to be ordered in this respect because it is not necessary either for disposing fairly of the cause or matter or for saving costs.

(d)     The 2005 will

29.  Requests 28 to 30 touched on the 2005 will.  It can be easily and quickly disposed of.  As far as the present pleadings are concerned, the 2005 will appears to be irrelevant at trial.  In any event, I do not consider the request sought is not necessary either for disposing fairly of the cause or matter or for saving costs.

(e) Counterclaim

30.  In the Counterclaim, the defendant said (if the court will hold the will to be invalid and the Deceased died intestate) that the plaintiff is not a suitable person to be appointed although they had the same priority to it under our intestacy rules.  Three particulars were given, including the plaintiff was aged 65 or above, and:-

“(2) The administration of the estate of the Deceased will likely to involve an investigation of the assets of the estate from 2013 to 2015, if not earlier, after the Plaintiff started to visit the Deceased; and

(3) The Plaintiff will likely to have serious conflicts of interest in carrying out the said investigation and in bringing the subsequent legal proceedings, if necessary.”

31.  By requests 31 and 32, the plaintiff asked the defendant to give details of the investigation and conflict of interests.  I agree with the plaintiff on this occasion.

(a) The particulars touch on the 2^nd issues in the present proceedings.  They are therefore relevant.

(b) They are allegations made by the defendant against the plaintiff as to his unsuitability to act as administrator for the Estate.  As such, to tie the hands of the plaintiff down, to avoid any surprise at trial, it is necessary for the defendant to set out his case clearly in her pleadings.

(c)    Indeed, I can see that Mr. To tried to save (or clarify) the case of the defendant by paragraph 16 in his skeleton.  He referred me to various parts in the Defence:-

“16. …It concerns matters such as:

a. P’s taking of many documents to the Deceased for signing when the Deceased had poor (if not lack of) mental capacity…

b. P’s setting up of a joint bank account with the Deceased when the Deceased had poor (if not lack of) mental capacity…

c. The Deceased’s property being marketed for lease or sale, when the Deceased did not aware of the same and when he had poor (if not lack of) mental capacity…

d. The Deceased signed documents to transfer his property to P’s son by way of gift without any consideration, when the Deceased did not aware of the same and when he had poor (if not lack of) mental capacity…”

(d) However, it is not good enough.  The skeleton of a counsel does not bind the defendant.  Mr. To also used the word “…such as…” to include the particulars sought by the plaintiff.  More could therefore be coming up at the stage of discovery or even trial.  This is not satisfactory.

(e) Last but not least, I am of the opinion that the answers for these 2 requests are necessary either for disposing fairly of the cause or matter or for saving costs.

CONCLUSION

32.  To conclude, I make the following orders.

(a) The defendant do file and serve within 28 days her Answers to request 31 and 32 as per the plaintiff’s Request dated 29 June 2016 (a copy of it is annexed to the summons filed on 18 August 2016 herein).

(b) Subject to (a) above, the said summons filed on 18 August 2016 herein is dismissed.

(c) There be an order nisi (to be made absolute after 14 days from the date hereof) that the plaintiff do pay 90% costs of the defendant in the application, including costs reserved and certificate for counsel for hearing on 24 November 2016, to be taxed in not agreed, in any event.

(d) There be also an order nisi (to be made absolute after 14 days from the date hereof) that the defendant’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap.91A).