XCHRX SHAON LAL HIRANAND AND OTHERS v. DR. HARI NAROOMAL HARILELA AND OTHERS

HCAP15/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.15 OF 2000

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J U D G M E N T

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Background

1. The Deceased involved in this case is one Manghanmal Hiranand Ramchandani ("the Deceased"). He died on 30 August 1994 in Singapore. He had one son and three daughters. His son is Lal Manghanmal Hiranand ("Lal") and Lal's wife is one Kamla Lal Hiranand ("Kamla").

2. The present three plaintiffs are the children of Lal and Kamla. They are Shaon, Priya, and Ravine. Probate in respect of the estate of the Deceased was granted in Hong Kong on 6 May 1998 to his eldest daughter "Padma" ("the 2nd defendant" herein) as executrix under a will dated 24 April 1986 and codicil of 16 October 1987 (collectively as "the 1986 Will"). Power was reserved to the 1st defendant ("Hari"), who was the other executor appointed under the 1986 Will, to apply for grant.

3. The administration of the estate in Hong Kong has been fully completed by 12 July 1999. Lal, who is the sole beneficiary under the 1986 Will (his mother having predeceased the Deceased), has executed a Deed acknowledging receipt of the entire residue estate situated in Hong Kong and other parts of the world (excluding Singapore) and confirmed discharge of the executors.

The Singapore Action

4. Probate of the 1986 Will was sought by Padma in Singapore. However, Kamla filed her caveat against the issuance of the grant. Initially when Padma's solicitors in Singapore wrote to enquire of Kamla's solicitors as to what was her interest in the matter, Kamla through her solicitors merely claimed that she had an interest as a beneficiary and a member of the family of the Deceased and did not say that she intended to propound any other will.

5. The first time that there was ever any suggestion of the existence of what was later known as the 1988 Will, was on 18 September 1998 when Kamla filed an appearance to Warning. There and then she claimed an interest in the estate of the Deceased, inter alia, pursuant to the alleged 1988 Will. An order was made on 27 October 1998 for Kamla to take out the writ joining Padma, Hari, and Lal to be defendants in the Singapore Action, DC Suit No.51362 of 1998.

6. In this Singapore Action, Kamla claimed that there was in existence a will purportedly made by the Deceased on 22 November 1988 in California, which she said was the last will of the Deceased ("the alleged 1988 Will"). The alleged 1988 Will purported to give her and her three children certain shares in the estate. Despite all efforts by the other parties to obtain discovery of the original copy of the 1988 Will, Kamla was unable to produce it. She contended that the original of the alleged 1988 Will was lost, but she had a copy. As in the present proceedings her contention was that the copy document at Bundle B-15-17 was a copy of the original 1988 Will executed by the Deceased.

7. Contentious probate proceedings began in Singapore with the result that the Singapore court dismissed Kamla's claim based on the alleged 1988 Will and pronounced probate in favour of the 1986 Will instead. Kamla has appealed all the way to the final court in Singapore i.e. the Court of Appeal of Singapore, but her appeals were dismissed on each occasion. On 8 August 2000, the Court of Appeal of Singapore, quite apart from the very strong evidence showing that the copy of the alleged 1988 Will produced by Kamla was a forged document, held that the alleged 1988 Will, even if it was genuine, could not be a valid will or testamentary disposition of the Deceased. Consequently, the 1988 Will, not being a valid will, could not give rise to any valid legal claim based on trust either.

The present action

8. The present action was commenced on 6 December 1999 originally by Lal, Kamla, and their three children i.e. the present three plaintiffs, at the time when Kamla was appealing to the Singapore High Court against the Registrar's decision holding that the alleged 1988 Will was not valid either as a testamentary document or as an instrument of trust.

9. The present action was commenced with a lot of fanfare and publicity, I was told. However, despite widespread publicity of the action, and despite the defendants' solicitors repeated demands, the five plaintiffs refused to serve the Writ on the defendants. This resulted in the defendants taking steps to enter "appearance gratis" to the unserved writ, and applying to court to compel the plaintiffs to serve the Statement of Claim.

10. After delay of considerable time and despite the making of two Unless Orders by the court, on 24 February 2000 and 8 March 2000, neither Lal nor Kamla filed a Statement of Claim. Instead, on the last day for complying with the 2nd Unless Order, they purported to serve a Notice of Withdrawal withdrawing their claims against the defendants. Upon the application of the defendants, the Notice of Withdrawal was struck out by the court, with the court making an order that they would only be permitted to withdraw from the action upon the condition that they should not commence a second action against the defendants in respect of the same or substantially the same subject matter as the present action. Kamla appealed against this decision but her appeal was dismissed by Waung J on 28 September 2000. In the present action, the three plaintiffs being children of Lal and Kamla, filed a Statement of Claim on the last day of the 2nd Unless Order. The Statement of Claim as filed seeks to repeat and rehash those contentions made by Kamla in the Singapore proceedings. The plaintiffs alleged that the 1988 Will had appointed Padma and Ram ("the 3rd defendant" herein) as the executors and trustees.

The applications herein

11. Hari and Padma (as represented by Mr Edward K.S. Chan, SC and Mr Horace Y.L. Wong of counsel) and the 3rd defendant ("Ram") (as represented by Mr Ambrose Ho, SC) apply :

(i) to strike out the Statement of Claim and dismiss the plaintiffs' action pursuant to Order 18, rule 19 and inherent jurisdiction of the court; and

(ii) for determination pursuant to Order 14A of the validity of the alleged 1988 Will and whether the same is in law capable of creating a trust binding on the defendants.

12. There are several grounds of this striking out application and I shall consider them one by one herein below.

Locus of the plaintiffs

13. The plaintiffs' entire claim is built upon their status as beneficiaries under the alleged 1988 Will. They do not otherwise have any interest in the Deceased's estate ("the Estate"). They have no interest whatsoever whether under the 1986 Will or on intestacy of the Deceased. They are not beneficiaries under the 1983 Will referred to in paragraphs 7 and 8 of the Statement of Claim. In any event, it is the plaintiffs' own case that the 1983 Will was not a valid will.

14. Consequently, as strangers to the Estate, the plaintiffs are not entitled to dispute the validity of the 1986 Will, or seek to set aside the probate granted in favour of Padma or seek other reliefs under paragraphs (3) to (9) of the prayer of the Statement of Claim.

15. The plaintiffs' claim, and hence their locus, in this action is premised entirely upon :

(i) the alleged 1988 Will being both a genuine as well as a valid testamentary instrument; or

(ii) the validity of the alleged trust created in accordance with the alleged 1988 Will.

The genuineness of the alleged 1988 Will

16. There is overwhelming evidence that the alleged 1988 Will is not genuine and I shall summarize the evidence in support hereinunder :

(1) There is unchallenged evidence that the Deceased was not even in California on 22 November 1988, the date when the alleged 1988 Will was purportedly made. The Deceased's passport shows that between 20 November 1988 and 4 May 1989, he was in Hong Kong and therefore could not have executed the alleged 1988 Will in California.

(2) The firm "Berris Seton & Bishton" which purportedly notarized the execution of the document had already by then ceased to exist in 1988. The entire law office of Berris & Seton closed down in 1987. Any stationery and/or chops referring to the firm "Berris, Seton & Bishton" was destroyed in approximately 1985. All these facts and those herein below were testified by Mr Bishton and/or Mr Berris themselves. The plaintiffs adduced no evidence to the contrary at all.

(3) Berris, Seton & Bishton had in fact never used the chops appearing on the document according to the unchallenged evidence of Mr Bishton himself.

(4) In California, only individual person, not firms, can be Notaries. The law firm Berris, Seton & Bishton has never been a "Notary Public".

(5) The standardized provisions in wills used by the firm did not appear in the alleged 1988 Will.

(6) No lawyer of that firm had prepared or witnessed the alleged 1988 Will.

(7) The typewriter or computer font with which the alleged 1988 Will was prepared, was not a type used in the law offices of Berris, Seton & Bishton.

(8) The numerous grammatical errors and the strange choice of words such as "irrevocable will" to be "effective on the 17th day form the day of the [deceased's] death", and "this last irrevocable undisclosed will and to serve without bond", would all indicate that the document was not drawn up professionally by US lawyers as deposed to by both Mr Bishton and Mr Berris. In fact, the use of the words "irrevocable, undisclosed" would indicate that the maker of this document really wanted to provide some sort of internal explanation for the late propounding of this "will" and the words "without bond" would indicate that the maker would in all probability want to avoid the Probate court's requiring the giving of a bond to propound the will. It is thus likely this is prompted by his knowledge of Lal's being required to give a bond in order to get the grant for the 1986 Will.

Existence of the alleged 1988 Will

17. There is no credible evidence that the alleged 1988 Will did in fact exist. In fact, the evidence supported strongly that the original 1988 Will did not exist.

18. The plaintiffs only put forward a case that they strongly believe the alleged 1988 Will did exist. They have no personal knowledge but they relied only on an unsworn statement from their father, Lal. Lal himself had never seen the original of the alleged 1988 Will. The plaintiffs claim that the original was kept in a safe deposit box which was in the joint names of the Deceased and Lal, with Kamla as deputy. Following the death of the Deceased, the only persons who could open the deposit locker was Lal and Kamla. It has not been explained why, in these circumstances, Lal and Kamla did not get hold of the original will and propounded this 1988 Will earlier after the death of the Deceased on 30 August 1994.

19. Lal only relied on a copy of the "inventory" annexed to his statement as evidence of the Deceased's "Will of 1988" being in the safe deposit locker. He said that it was opened on 14 November 1999. However that was only his statement which was not under oath. The date of 1999 must be a mistake for 1994 when the safe deposit locker was actually opened. It might well be a deliberate mistake in order to explain away why the alleged 1988 Will was not produced earlier.

20. The so-called "inventory" annexed to Lal's statement however is shown not to be a genuine record but has been altered with the addition of the words "Manghanmal Hiranand Will of 1988". The Inland Revenue Department has kept a record of the inventory list which clearly shows that the copy inventory list produced by the plaintiffs is a document which has been tempered with by the aforesaid addition. The fact that Part B at the bottom was crossed out is a clear indication that no will or codicil was retrieved when the deposit locker was opened in the presence of the officers from the Estate Duty Office of the Inland Revenue Department. In short, in November 1994 when this locker was opened no will was discovered inside by Tax Inspector of the Estate Duty Office. It is difficult to accept Lal's statements when he denied presence at the time of opening of the deposit locker despite of the fact that his signature appeared on the inventory. In other words, Lal's denial of his presence would only worsen the plaintiffs' case.

21. As a Probate Judge, I understand that at the back of an inventory form of the Estate Duty Office, it is always stated as follows :

" NOTES

1. Removal of the Will of the deceased is only permitted, if the requesting party is the same person as the executor named in the Will, or, if there are codicils to the Will, the executor named in the last codicil. A photocopy of the Will and/or codicil removed should be taken immediately after the opening for retention by the Estate Duty Office."

This has always been the practice of the Estate Duty Office. It is inconceivable that if a will was found in the locker in November 1994, this had not been noted in the inventory taken by the Estate Duty Office with a copy made and retained by the Tax Inspector before the original was given to the named executor in accordance with the note of practice endorsed on the back.

22. There was never any claim by anyone including Lal, Kamla or the present plaintiffs before 18 September 1998 that such alleged 1988 Will had ever existed. Indeed, Lal had repeatedly confirmed on oath, when seeking probate in Hong Kong and Singapore that the 1986 Will was the last will of the Deceased. Lal even himself supported Mr Wall, an attorney, to apply for a grant of representation on the 1986 Will in California. Those statements of confirmation comprised the followings, namely :

(1) Oaths of Lal on 24 June 1996 to support the US grants by confirming the signature of the Deceased on the 1986 Will;

(2) Oath made by Lal on 15 September 1997 in Hong Kong; and

(3) Affidavit of testamentary script filed by Lal in Singapore dated 3 December 1998.

All these documents were made after the opening of the deposit locker on 14 November 1994 when it is now alleged that the original 1998 Will was found inside. Thus Lal's unsworn statement is contrary to all his aforesaid statements under oath!

23. Lastly, Ram himself, although apparently named as an executor in the alleged 1988 Will, had never heard of the alleged 1988 Will whether during the lifetime or after the demise of the Deceased. He has not been approached by anyone to take up executorship or trusteeship. He only became aware of the allegation as to the alleged 1988 Will when he was told of the litigation in Singapore.

24. Accordingly all the evidence before me supported the plain and obvious conclusion that there is no such 1988 Will and the copy produced is only a forged document.

Legal invalidity of the alleged 1988 Will

25. In any event, the alleged 1988 Will does not comply with section 5 of the Wills Ordinance, inter alia, for want of witnesses and/or proper proof of attestation by witnesses. The Deceased died in 1994 before the amendment to section 5 in 1995 to the Wills Ordinance. It is therefore not necessary to decide whether there is any effect to this will by way of the new amendment which has no retrospective effect. Thus, the alleged 1988 Will cannot be valid in Hong Kong as a testamentary instrument of the Deceased.

26. The alleged 1988 Will is also invalid under the laws of California (the place where it was allegedly executed by the Deceased), or the laws of India (being the State of which the Deceased was a national). This fact was not disputed and was in fact common ground in the Singapore proceedings. The plaintiffs have not adduced contrary evidence or contended otherwise in their action herein.

The invalidity of the 1988 Will as a trust instrument

27. It was contended in paragraph 17 of the Statement of Claim that the Deceased had set up a trust in respect of his Estate on terms of the 1988 Will. Similar allegations were made in the Singapore proceedings that, although the alleged 1988 Will was not valid as a testamentary instrument, it was nevertheless valid as an instrument of trust. This point had no merit and was firmly rejected by the Singapore courts as aforesaid.

28. On the face of the alleged "1988 Will", the "testator" clearly intended the document to be a testamentary instrument. It is entitled the "Last Will". The following provisions are of particular significance :

"FIRST : This will will be effective on the seventeenth day from the day of my death."

"THIRD : ....I also accordingly bequeath my entire estate at the time of my death, ... in Trust to the trustees hereinafter named to be held, administered and distributed as follows : ...." (Emphases added)

29. Underhill and Hayton's Law of Trusts and Trustees, 15th Ed, at p.218 contains a clear statement of the law concerning "testamentary trust" :

"Clearly, when a testator is intending in his will or codicil to create trusts of property to take effect on his death such trusts will only take effect if the Wills Act 1837 formalities are satisfied as respects the trust property and the intended beneficiaries by virtue of the testator's signature being attested by two witnesses present together." (Emphasis added)

30. In Milroy v. Lord ((1862) 4 D. F & J 264; 45 ER 1185) a "settler" executed a deed purporting to assign certain shares in a bank to a trustee to be held by him in trust for the benefit of the plaintiffs. The shares were transferable only by entry in the books of the bank but no such transfer had ever been made. The trustee in fact held a power of attorney from the settler, which would enable him to cause the bank to effect the transfer in the books but he had never asked the bank to do it. After the deed, the settler further authorised the trustee to receive the dividends from the bank and the trustee did receive the dividends and remitted it to the plaintiffs. Upon the death of the settler, the question arose as to whether there was any valid gift of the shares to the plaintiffs. It was held that there was no valid gift.

31. The settler never intended to benefit the plaintiff by declaring himself trustees of the shares for the plaintiffs. He intended that the trustee should hold the shares for the plaintiffs but the shares were never vested in the trustees. The trustee was never bound to obtain the legal title to the shares. The plaintiffs as volunteers were not entitled to compel the transfer of the shares to the trustee or themselves.

32. In the well known judgment of Turner L.J. (at page 274), he said :

"I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do thins by actually transferring the property to the persons for whom he intends to provide, and, the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent; that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. These are the principles by which, as I conceive, this case must be tried." (Emphasis added)

33. That is in line with the conclusion of the Singapore of Court of Appeal at paragraphs 27-28, in that the 1988 document, being unequivocally testamentary in nature, is incapable of creating a trust; and being invalid as a will, cannot take effect as a declaration of trust in respect of any property in the Estate. Knowledge of the Deceased's intention is entirely irrelevant.

34. Kamla has asserted an argument in the Singapore proceedings based on "secret or half-secret" trust. This was not pleaded in the present action nor alluded to in the plaintiff's affirmation. Even if any reliance is now sought to be placed on such secret or half-secret trust, the same is bound to fail for the same reasons as set out in the judgment of the Singapore Court of Appeal, namely that there was neither the pleading nor the assertion that the defendants had accepted the obligations imposed by the alleged secret trust. In any events, such secret trust or half-secret trust can only affect the legatee under the will i.e. Lal as recipient of the Estate Property and not on the defendants who are required to administer the Estate in accordance with the 1986 Will.

35. In Re Snowden [1979] 2 All ER 172 at 177f Megarry V-C said :

" On the other hand, the whole basis of secret trusts, as I understand it, is that they operate outside the will, changing nothing that is written on it, and allowing it to operate according to its tenor, but then fastening a trust on to the property in the hands of the recipient."

Frivolous, vexatious, scandalous and abuse of the process of the court

36. By reasons of the aforesaid matters the present action is absolutely hopeless. It is plainly aimed at creating a privileged occasion to defame and harass the defendants especially Hari and to cause embarrassment to them. The following submissions of Counsel for the defendants, (which I accept), have clearly summarised why this action is just frivolous, vexatious, scandalous and an abuse of the process of the Court, namely :

(a) There is absolutely no conceivable case against Hari at all. The 1st defendant had not obtained any grant of the 1986 Will, nor was he in any way interested in the alleged 1988 Will or any other wills or in intestacy. As he did not take up the grant there is no reason to join him as a party to set aside the grant. He was not named as an executor in the 1988 Will, and so in any event, he could not be a trustee under the 1988 Will even assuming that that document would create a valid trust. There was no suggestion that he was in any way in receipt of the estate of the Deceased or that he had in fact administered the estate. The allegations wildly made in paragraph 18 of the Statement of Claim are unsustainable. Plainly the agreement of 1 October 1997 was made between a company and Hari and Padma. There was nothing to show that Hari was in any way involved with any other transfers particularised thereunder.

(b) The allegation in paragraph 12 of the Statement of Claim that the 1986 Will was a forgery is wholly unsubstantiated. The plaintiffs insinuated by relying on the statutory declaration of Lal and a document said to be a fax sent by Lal to his solicitors as suggesting that the 1986 Will were forged by the 1st and 2nd defendants. Quite apart from the complete lack of credibility on the part of Lal, the document he relied on was completely self serving. There was nothing to indicate that in fact he had sent out the alleged fax to his lawyers on 6 October 1994.

(c) Lal only started making allegation that the 1986 Will was forged and that there was the 1988 Will after the administration of the estate in pursuance of the 1986 Will was completed i.e. 12 July 1999. The first indication of Lal's change of position was on 18 August 1999 when he sought to support Kamla's case in Singapore. But in truth and in fact, Lal had entered into a deed with Kamla on 28 May 1999 whereby Lal agreed inter alia to carry out the wishes of the Deceased in accordance with the 1988 Will even though the document may be defective and unenforceable in law. Plainly the plaintiffs and their parents had acted in concert in getting all property of the estate and then trying to create all these troubles for the defendants.

(d) For the aforesaid reasons the 1988 instrument relied upon is undoubtedly a forged document. The attempt to add credence by relying on the schedule of property drawn up the estate duty officers on 14 November 1994 is fraudulent and is a blatant attempt to mislead the Court.

(e) The plaintiffs never really intended to pursue the action. This is evidenced by the plaintiffs' reluctance to serve the writ and the Statement of Claim notwithstanding two Unless Orders. The plaintiffs' excuses in not serving the writ or in the delay in the serving of the Statement of Claim is plainly false. In fact the plaintiffs' intention was even to discontinue their action against Ram and this is merely because of the desire of minimizing their cost exposure.

(f) This allegation of forgery of the 1986 Will, quite apart from its not being maintainable, is wholly unnecessary and was calculated only to slander the defendants especially Hari. If the 1988 Will was sustainable as a will, then the 1986 Will is automatically revoked and there is no need to go into the question of the whether it was forged or not. If the 1988 Will was not a valid will, then the plaintiffs would have no locus to challenge the validity of the 1986 Will and the allegation of forgery is not maintainable by the plaintiffs in any event.

(g) All the property of the estate having been transferred to Lal and with Lal having agreed by Deed and submitted to the Order of the Singapore Court to implement the Deed, nothing could be achieved by this action.

The defendants' application to lift the stay under section 15(4) of Legal Aid Ordinance

37. By reasons of the aforesaid matters it is very plain and obvious that this case is entirely hopeless. However, on 29 June 2001, the three plaintiffs filed a notice to act in person whereas just before the hearing of the defendants' application herein, the plaintiffs were still on record represented by a firm of solicitors Messrs Dibb Lupton & Alsop since 26 September 2000, and leading counsel, Mr Ronny Wong, SC and Mr Andrew Mak of counsel. On 3 July 2001, i.e. just the day before the hearing, the 3rd plaintiff, Ravine, applied for legal aid and a memorandum of Notice of application for legal aid by him was filed by the Director of Legal Aid.

38. The effect of filing the aforesaid Notice under section 15(3) and (4) of the Legal Aid Ordinance, Cap.91 is as follows :

"(3) Where any party to an action, or any person who wishes to be joined as a party, makes an application for legal aid to prosecute an appeal or proceedings in the nature of an appeal, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court or tribunal against whose judgment or order it is intended to appeal, a memorandum of such notification.

(4) Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run."

Consequently, in short there shall be a stay of "all proceedings in the action" for a period of 42 days (pursuant to regulation 7A of the Legal Aid Regulations) unless otherwise ordered by the court. The defendants applied to me at the outset of the hearing that I should lift the stay pursuant to this proviso.

39. In my view, the plaintiffs had resorted to a delaying strategy by changing solicitors, and acting in person in order to delay the action. For instance on 24 February 2000 immediately before the hearing of the summons for an unless order for the service of the Statement of Claim, the then 1st, 2nd, 4th and 5th plaintiffs filed a notice to act by one Srikumar, and the present 1st plaintiff (who was the 3rd plaintiff at that time) filed a notice to act in person. This had not deterred the court from making an unless order for the Statement of Claim to be served on or before 9 March 2000. Then, all five plaintiffs appointed Messrs Deacons to be the solicitors on 7 March 2000 who then applied for an extension of time. They changed solicitors in September 2000 as aforesaid.

40. The present summons before me was dated 17 October 2000, and it was fixed for hearing on 2 November 2000 when the determination of the summons was adjourned to a date to be fixed and directions for the filing of affidavits were given. The date of the present hearing on 4 July 2001 was fixed as long ago as 8 November 2000.

41. Thus, there was ample of time for the plaintiffs to file any affidavit to oppose this application. However, today the 1st plaintiff, Shaon told me that he could not resist this application without resorting to "other documents". He repeatedly told me that he had to obtain further documents in order to prove what he was saying was right. He could not identify those documents. He could not tell me why those documents could not be produced earlier in their affirmations in opposition. It is quite clear from the chronology of events as I have pointed out as aforesaid, the allegation of the existence of this 1988 will was as early as 1998. There was no explanation why the so-called "other documents" could not have been obtained for about more than two and a half years.

42. It is only the 3rd plaintiff who has applied for legal aid. However for the present purpose, in order to avoid any technical arguments as put forward by the 1st plaintiff on behalf of all three plaintiffs, I just assume for the purpose of this decision that all three plaintiffs have already applied for legal aid.

43. The lifting of a stay pursuant to section 15(4) should not be made unless in an exceptional case. In other words, the general rule is that all proceedings in the action shall be stayed for a period of 42 days. The lifting of the stay is an exception to the rule and should only be exercised sparingly in an exceptional case.

44. However, in this case, I must say that it falls within the exception. It is clear from the consideration of all the materials before me, the plaintiffs' case is entirely hopeless. Nothing has been said or put before me to show that there is any possibility of disproving those pieces of strong evidence put before me by the defendants. If I do not exercise my discretion to lift the stay, I would be encouraging the plaintiffs to further abuse the process of the court by their delaying tactics.

45. Consequently, I have no hesitation at all in this particular case to apply the exception and lift the stay pursuant to section 15(4) of the Legal Aid Ordinance.

Conclusion

46. In the end, it is plain and obvious that this action must be struck out and the action be dismissed on the grounds that the claims of the plaintiffs are frivolous, vexatious, scandalous and/or otherwise an abuse of the process of court. Further, pursuant to Order 14A, I have decided that the so-called "lost will of 1988" referred to in paragraph 13 of the Statement of Claim, was invalid in law as a will and the same is in law incapable of creating a trust binding upon any of the defendants in this action.

47. Further, since I have decided that it is a very plain and obvious case that the plaintiffs have been abusing the process of the court by hanging to a totally hopeless case, I must also make the exceptional order of costs and that is the plaintiffs must bear the three defendants' costs of the summons and of the action herein, on indemnity basis with certificate for two counsel for the 1st and 2nd defendants.