LAU HAU CHU v. IP KAM

HCAP6/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 2002

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J U D G M E N T

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1.  In this action, the plaintiff, in her capacity as the executrix appointed by will, seeks a revocation of the Letters of Administration of the estate of Ng Sou, deceased, (“the Deceased”) granted to the 1^st defendant on the ground that it was obtained by means of a false and incorrect statement that the Deceased died intestate.  The plaintiff also seeks an order for the withdrawal of the caveat entered by the defendants and for the grant of probate to herself limited to the interests under the Will of the Deceased.  The disputes turn primarily on whether the 1^st defendant had made a false and incorrect statement leading to the grant of the Letters of Administration and on the validity of the Deceased’s Will.

Background

2.  Much of the background of this case is not in dispute and can be summarized as follows.

3.  Prior to his death, the Deceased was the registered tenant of several fish stalls in public markets managed by the then Urban Council.  In particular, under a tenancy agreement dated 28 June 1995 (“the Tenancy Agreement”), the Deceased was granted a three years tenancy over stall no. F15 at Pei Ho Street Market (“the Stall”), commencing 1 July 1995.

4.  The plaintiff had since about 1991 worked with the Deceased as his employee at the various fish stalls of the Deceased, including the Stall. 

5.  The 1^st defendant is the lawful widow and relict of the Deceased.  The 2^nd defendant is their lawful and natural son.

6.  On 31 July 1995, the Deceased executed a power of attorney, appointing the plaintiff as his lawful attorney to, inter alia, generally manage the Stall (“the Power of Attorney”).  On the same day, the Deceased executed a Will (“the Will”), appointing the plaintiff as an executor, and bequeathing to the plaintiff all his estate, rights, interests, title and benefit in the Stall.  The Will contains no provision disposing of other assets of the Deceased.

7.  Both the Power of Attorney and the Will was prepared by a firm of solicitors, Messrs Liau Ho & Chan, and executed in the presence of a solicitor, Mr Hugo SK Chan.

8.  The Deceased died on 4 November 1996.

9.  It is the plaintiff’s case that she continued to manage the Stall and paid the rent and outgoings of the Stall after the death of the Deceased until June 2002.

10.  In early 1997, the 1^st defendant applied for the grant of letters of administration over the estate of the Deceased.  The 1^st defendant was legally represented in the application.  In her affirmation made on 25 February 1997 in support of the application, the 1^st defendant stated that the Deceased died intestate: paragraph 1.  The 1^st defendant further stated in her affirmation that since the death of the Deceased, she had made a diligent search among his papers and effects for any will made by him, but had been unable to find such will: paragraph 2.  On 10 March 1997, a general letters of administration was granted to the 1^st defendant under HCAG001448/97 (“the LA”). 

11.  In early 2001, the 2^nd defendant through his solicitors applied for the grant of letters of administration of the estate of the Deceased.  According to the 2^nd defendant, this was for the purpose of enabling him to take over the operation of the Stall.  In connection with the application and for the purpose of determination of estate duty, he made an affirmation verifying the assets and liabilities of the Deceased (ED Form 1).  Included in the list of properties is “the Deceased’s interest as a tenant” in the tenancy over the Stall created by the Tenancy Agreement.  It is the 2^nd defendant’s case that in the course of the application, he learned that the 1^st defendant had already obtained letters of administration to the Deceased’s estate, and he therefore did not proceed further with his application for grant.

12.  On 10 May 2001, the plaintiff applied for grant of probate of the Will.  The original of the Will was lodged with the Probate Registry.  On 22 May 2001, the 2^nd defendant entered a caveat no. HCCA000799/01 against the sealing of grant of representation of the Deceased’s estate.  On 21 November 2001, the plaintiff filed a Warning to Caveator.  On 3 December 2001, the 2^nd defendant entered Appearance to the Warning on behalf of the 1^st defendant and himself, claiming that their interest in the estate arose out of their entitlement in distribution under the intestacy of the Deceased.

13.  On 8 May 2002, the plaintiff issued the Writ herein.  On 19 August 2002, the plaintiff applied by summons to compel the 1^st defendant to lodge with the court the original LA.  On 5 September 2002, the defendants cross-applied by summons for leave to lodge a certified copy of the LA.  In his affirmation made on the same day in support of the application, the 2^nd defendant stated that the original of the LA “has been lost or otherwise mislaid and cannot be found”.  Similar assertion was made on his behalf by his solicitors herein in a letter dated 10 December 2001 to the Probate Registry requesting for certified copies of the LA and the 1^st defendant’s affirmation in support of her application for grant.          

14.  In the meantime, the plaintiff had applied to the Food and Environmental Hygiene Department (“FEHD”), which took over the management of public markets after the abolition of the Urban Council, to “succeed” to the tenancy over the Stall. By a letter dated 20 March 2002, FEHD refused the plaintiff’s application on the ground that the 1^st defendant, as administratrix of the estate of the Deceased, had made similar application to FEHD in respect of the Stall. The plaintiff was required to vacate the Stall by 30 April 2002.  As a result, the plaintiff vacated the Stall in June 2002. Subsequently, the 2^nd defendant was granted a tenancy over the Stall.  The Stall is presently managed by employee(s) of the 2^nd defendant.

The pleadings

15.  The plaintiff’s claim is simple and straightforward.  She says that the LA is liable to be revoked because the 1^st defendant had made a false or incorrect statement in her application for the grant. It is the plaintiff’s case that the 1^st defendant was present with the Deceased when the Will was executed and was therefore fully aware of the existence of the Will.  Relying on the Will, the plaintiff seeks a limited grant of probate.

16.  The defence as pleaded is twofold.  First, it is pleaded that the Deceased did not know and did not approve the contents of the Will.  Secondly, it is pleaded that the Deceased was not of sound mind, memory and understanding when the Will was executed.  The defendants maintain that the Deceased died intestate and put the plaintiff to strict proof of due execution.

17.  By way of Reply, the plaintiff disputes the plea of unsound mind and further pleads that before the Deceased executed the Will, Mr Hugo Chan had read and interpreted the Will to him and he had confirmed his understanding and approval of the contents.

18.  The defendants have not filed any medical or expert evidence on the mental condition and ability of the Deceased at the time of the execution of the Will or otherwise.  Understandably at the commencement of the trial, Mr Kwok indicated that the defence of unsound mind will not be pursued by the defendants. 

19.  On the first day of the trial, the defendants applied by Summons for leave to amend the Defence by adding a plea that prior to the execution of the Will, the Deceased had not been warned or advised that the Tenancy Agreement with the Urban Council “was not such that might be assigned or transferred by the Deceased”.  The plaintiff opposed the application. Miss Chow pointed out that at the pre-trial review before A Cheung J, the question of whether the tenancy of the Stall could be assigned had been raised and A Cheung J had indicated that it should not be dealt with in these proceedings.  It was also pointed out that if the amendment was allowed, the plaintiff would need to lead evidence on the practice of the Urban Council with regard to “succession” of tenancy of market stalls thereby necessitating an adjournment of the trial with costs consequences.  After considerations, the defendants withdrew the Summons and the application to amend.       

20.  The issues that arise from the pleadings for determination at this trial are therefore confined to:

(1)	Whether the Will had been validly executed.  In particular, whether the Deceased knew and approved of the contents of the Will before he signed and executed it.
(2)	Whether the 1st defendant had made a false or incorrect statement in her affirmation in support of the application for the LA when she stated that the Deceased died intestate.
(3)	If the answers to (1) and (2) are in the positive, whether the LA should be revoked and whether the plaintiff is entitled to a limited grant of probate.

21.  In view of the pleadings and given that the amendment to the Defence had been abandoned, the question of whether the Deceased could bequeath and devise to the plaintiff by Will his “estate, rights, interests, title and benefit” of and in the Stall does not arise for determination.

The witnesses and their evidence

22.  The plaintiff had given evidence and called two witnesses. The first is a Mr Wong Chi Ling, who was also employed by the Deceased and worked with them at the various fish stalls, including the Stall.  Mr Wong was also present at the execution of the Power of Attorney and the Will.  The second is Mr Hugo Chan.   The 1^st defendant did not give evidence.  According to the 2^nd defendant, she has been ill since January or February 2002 and it is the 2^nd defendant who has been giving instructions and conducting the case both on her behalf and on behalf of himself. 

23.  The 2^nd defendant had given evidence.  Initially, he had no witness. However, on the first day of the trial and after the plaintiff had given evidence, the 2^nd defendant applied to call his wife as a witness.  No draft witness statement was prepared.  Mr Kwok indicated that the wife’s evidence is about the visit paid by the plaintiff and Mr Wong shortly after the Deceased’s death. The plaintiff opposed the application, pointing out that the wife was present throughout the evidence of the plaintiff.  I refused the application and gave oral reasons for the decision.  To recap, I consider that the 2^nd defendant own supplemental witness statement was already introduced very late, being just at the trial. And when he made his supplemental witness statement, he had no reason to believe that the plaintiff or Mr Wong would agree to his case that the plaintiff and Mr Wong had visited him and his wife, and he should have anticipated the need of calling the wife as a witness.  There has been a serious and unexplained delay in introducing the evidence of the wife.  Further, since the plaintiff’s evidence had concluded, with the 2^nd defendant’s wife present listening to the plaintiff’s evidence, and no draft witness statement was available, it would be prejudicial and unfair to the plaintiff to allow the application and justice requires that the application be refused.       

24.  Turning to the evidence of the plaintiff, she testified that the Deceased had always trusted her and had on a number of occasions announced his intention to let the plaintiff have and run the Stall after his death.  The documents disclosed by the plaintiff shows that the Deceased had on 29 May 1992 given her a general power of attorney to manage and operate a fish stall at Shum Shui Po Market, which the Deceased had rented.  Further, the Deceased had on 17 September 1992 made a written request to Urban Council to allow the plaintiff to be substituted as a tenant in respect of a fish stall let to him at Tung Chau Street Temporary Market, in the event of his death.  The request was made out on a proforma document and witnessed by a senior clerical officer of the Hawkers and Markets (Kowloon) section of the Urban Council.

25.  The plaintiff gave evidence that sometime in July 1995 after the execution of the Tenancy Agreement, the Deceased told her that he would execute a power of attorney and a Will over the Stall.  The plaintiff then recommended Messrs Liau Ho Chan to the Deceased and left it to the Deceased to liaise with the solicitors.  Eventually on 30 July 1995, the Deceased told her to go to the solicitors to sign the Power of Attorney.

26.  The plaintiff said that on 31 July 1995, the Deceased accompanied by the 1^st defendant went together with the 1^st plaintiff and Mr Wong to Messrs Liau Ho Chan.  In the presence of them all, Mr Hugo Chan interpreted and explained the Will to the Deceased in Cantonese.  After the Deceased indicated his understanding and approval, the Deceased signed on the Will.  Mr Chan and his clerk also signed on it as witnesses. On the same occasion, the deceased and the plaintiff signed and executed the Power of Attorney.

27.  The plaintiff denied the suggestion put in cross-examination that she was the one responsible for giving instructions to the solicitors on the contents of the Will.  She also disagreed to the suggestion that the 1^st defendant was left waiting outside the room and not present when the Deceased executed the Will in the presence of Mr Hugo Chan.  The plaintiff further denied that she and Mr Wong had visited the defendants and had tea together about one week after the Deceased’s death.  She denied requesting the defendants and their family members to sign documents giving up the Stall.     

28.  Mr Wong gave evidence that he had worked for the Deceased for about 17 years and had enjoyed good relationship with both the Deceased and the 1^st defendant.  He confirmed that the Deceased had all along indicated he would leave the Stall to the plaintiff after his death and that the Deceased had told him he was looking for solicitors to prepare the necessary documents.   He testified that he was present at the solicitors’ office together with the 1^st defendant and the plaintiff when the Deceased signed the Power of Attorney and the Will.  He disagreed to the defence suggestion that he was responsible for giving instructions and paying the legal costs for the preparation of the Will.  Like the plaintiff, Mr Wong was adamant that the 1^st defendant was present with the Deceased inside the room when the Will was explained by and signed in the presence of the solicitor.  

29.  Mr Wong also denied paying a visit to the defendants and treating them to tea about one week after the Deceased’s death.  He denied telling the defendants about the Will and offering to pay money to the 1^st defendant in return for the 2^nd defendant and his brothers and sisters giving up their claims to the Stall.  He also denied taking the 2^nd defendant to the Urban Council office at the market to check and see the papers signed by the Deceased giving the Stall to the plaintiff.

30.  Mr Hugo Chan gave evidence that he commenced practice as solicitor in 1981 and had, by 1995, considerable experience in attesting and witnessing the execution of wills.  He confirmed that the Will and the Power of Attorney were executed in his office in Tsuen Wan.  According to the office file, the file was opened on 14 July 1995 and the first instruction came from the plaintiff.  Mr Chan could not recall who gave instructions on the preparation of the Will, but he believed that the Power of Attorney was prepared on the instructions of both the plaintiff and the Deceased.  Mr Chan also said that the Deceased must have already come to the solicitors’ office before the day of execution.  He said that he had sight of and was aware of the Tenancy Agreement at the time as a copy of it was kept in the office file.  He could not recall exactly, but he believed he would have gone through it with the Deceased.

31.  Mr Chan testified that he personally attended the execution.  He said that he had carefully interpreted the Will in Cantonese to the Deceased and was fully satisfied that the Deceased had full understanding and knowledge of the contents before he signed on it.  He was also satisfied that the Deceased was of sound mind.  In cross-examination, Mr Chan disagreed that the occasion was a brief one that lasted for a few minutes.  He said he had explained to the Deceased the possibility of partial intestacy.  Mr Chan could not recall who else was present at the execution of the Will and power of attorney.

32.  As for the 2^nd defendant, he said in his witness statement, which he adopted as evidence, that in around summer 1995, the Deceased started to tremble and his hands shake a lot, his speech was incomprehensible and did not make sense and was diagnosed to be suffering from Parkinson disease.  However, as noted above, there is no medical or expert evidence to support these assertions and the defence that the Deceased suffered from unsound mind has been abandoned.

33.  The 2^nd defendant also stated in his witness statement, which is in evidence, that his parents never told him about the Will and that he had consulted all his family members and made a search of the Deceased’s papers before making the application for grant of letters of administration in January 2001, which was eventually not pursued.  The 2^nd defendant said the first time he learned of the Will was when the plaintiff told him so about one week after the death of the Deceased.  He elaborated on this in his supplemental witness statement he made the day before the trial, which he also adopted as evidence-in-chief.  He said on that occasion, the plaintiff and Mr Wong visited the 1^st defendant and him at their residence and invited them to tea at a restaurant nearby.  When they were having tea, Mr Wong asked all their family members to sign some documents to signify that they abandoned claims to the Stall and offered to give money to the 1^st defendant in return.  Mr Wong further said the Deceased had made a Will giving the Stall to the plaintiff.  The 2^nd defendant said he was taken by surprise by what Mr Wong said and challenged Mr Wong to go the office of the market to check the position.

34.  It is the 2^nd defendant’s evidence that they then went in Mr Wong’s car to the market.  At the market office, an inspector of Urban Council confirmed that they had “a succession paper” and showed him a document in English.  The 2^nd defendant said he understood the document to be a will though he did not understand English.

35.  It is also the 2^nd defendant’s evidence under the supplemental witness statement that when he returned home from the visit to the market office, he asked the 1^st defendant how it came about that the Deceased had signed the “succession paper”.  The 2^nd defendant said the 1^st defendant was frustrated and told him that Mr Wong and the plaintiff escorted the Deceased and her to their lawyers’ office, but left her outside the lawyer’s office, and took the Deceased inside the room to sign documents.

36.  The 2^nd defendant further said that in a visit in August 1995, the Deceased mentioned about a contract he made with Mr Wong at the office of a lawyer appointed by Mr Wong and the plaintiff, under which Mr Wong was appointed to run the Stall. The defendant stated in his witness statement that he understood the Deceased “meant to have appointed the plaintiff” to run the Stall as Mr Wong and the plaintiff had close working relationship.  Quite what the 2^nd defendant intended to say by this is unclear to me.  According to the 2^nd defendant, he had warned the Deceased to show the contract to him and his elder sister, but the Deceased refused, remarking that he knew nothing that could be of assistance.

37.  The 2^nd defendant also explained that although he knew about a will, he was not involved in the application for the LA.   He said his elder sisters accompanied the 1^st defendant to make the application.      

38.  The 2^nd defendant’s evidence under cross-examinations was rather different and confusing.  He first said that sometime in April or May 2002, an inspector of FEHD called on him and advised him to apply for letters of administration of the Deceased’s estate so as to apply for a licence to operate the Stall.  He said at the time, he was not aware of the grant of the LA to the 1^st defendant, hence he engaged solicitors to apply for grant of letters of administration.  When it was pointed out to him that his application for letters of administration was made in 2001, the 2^nd defendant maintained that the visit by the FEHD inspector was in 2002.  It was only in re-examination and after some prompting that he said the visit was in 2001. However, when asked to confirm, the 2^nd defendant said he could not recall.

39.  The 2^nd defendant also said in cross-examination that before the Deceased’s death, he had in 1995 asked the 1^st defendant about the Stall and was told that Mr Wong had cheated the Deceased of the Stall.  He seemed to suggest that the conversation he had with the 1^st defendant as set out in his supplemental witness statement (see paragraph 35 above) took place in 1995 before the Deceased’s death.  When the difference in timing was pointed out to him, the 2^nd defendant maintained that the conversation took place in 1995. He denied he had asked the 1^st defendant about the will made by the Deceased and said it was before he went to the market office and saw the “succession paper” that he questioned the 1^st defendant as to what document(s) had been signed at the lawyer’s officer.  On being cross-examined further on the discrepancy, the 2^nd defendant changed to say when he returned home after he went to the market office with Mr Wong, he did ask the 1^st defendant how did the Will come about and she told him she did not know as she was left outside the room.  

40.  In addition, the 2^nd defendant stated in cross-examination that he had never asked the 1^st defendant about the LA granted to her.  When he was asked on what basis he claimed in his affirmation made in September 2002 that the original LA was lost and could not be found, he explained that he had asked his sisters who accompanied the 1^st defendant to make the application and was told they could not find it.  It was then pointed out to him that he could and should have asked the 1^st defendant directly, whereupon he said he did not think he could get back the Stall, so he did not bother.  When he was reminded that his affirmation was made in the course of these proceedings, the 2^nd defendant prevaricated to say he knew nothing about the procedure and his sisters had left Hong Kong. He even said it was because his mother was ill in 2002.  Upon being pointed out that as early as 2001, his solicitors had claimed to the Probate Registry that the original of the LA was lost, the 2^nd defendant then said he had in fact asked the 1^st defendant and was told the document was kept with his sister (Ng Kwai Chun), but his sister said it could not be found.

41.  Quite apart from these inconsistencies in evidence, the 2^nd defendant had said nothing to explain why he proceeded in 2001 to apply for a general grant of letters of administration covering also interests in the Stall, when admittedly, he already knew that the Deceased had made a will relating to the Stall.  It is his evidence that he had been shown the document, which he believed to be a will.

42.  In my view, the 2^nd defendant’s evidence clearly shows that he is not a credible or reliable witness, and that he was changing his evidence to suit his convenience.  His evidence also raises doubts over whether the defence put up can be truly attributed to her mother, the 1^st defendant, given that it is revealed that the 1^st defendant has since February 2002 taken ill and stayed in a nursing home.  Indeed, the suggestion that the 1^st defendant was not present inside the room when the Deceased executed the Will has no factual or evidential basis.  This suggestion is also inherently incredible because there is no convincing reason why the 1^st defendant should be left waiting outside the room when she was in the first place asked or allowed to go along to the solicitors’ office.  As the plaintiff had responded spontaneously in cross-examination, the Will is very much a matter that concerned the 1^st defendant, so much so that she attended the solicitors’ office together with the Deceased.

43.  On the other hand, I consider that the plaintiff and her witnesses are credible and reliable witnesses and they had given a fair and truthful account of the events.  I accept their evidence.  I do not agree that the evidence on the giving of instructions to the solicitors raise doubt as to the credibility of the plaintiff or Mr Wong.

44.  I find as a fact that the Deceased well knew, understood and intended the contents of the Will before he signed it.  I also find that the 1^st defendant was present at the execution and was aware of the Will before she made her affirmation in support of her application for grant.  I reject the 2^nd defendant’s evidence on the alleged visit made by the plaintiff and Mr Wong about one week after the Deceased’s death, and the tea gathering and visit to the market office that followed.    

Revocation of the LA

45.  It follows from my findings that the Will was duly and validly executed by the Deceased, that the Deceased did not die intestate.  Given that the 1^st defendant was present when the Deceased executed the Will and that she was aware of the existence of the Will, the 1^st defendant’s statement in her affirmation in support of her application for letters of administration that the Deceased died intestate is clearly false and incorrect.  Even on the defendants’ case, which I reject, the 1^st defendant was made aware of the Will by the alleged visit that took place one week after the Deceased’s death, so that when she made the affirmation in 1997, she clearly should know that the Deceased had made a will before his death.  

46.  In the circumstances, the LA granted to the 1^st defendant is liable to be revoked under section 33(1) of the Probate and Administration Ordinance, cap. 10: see also William, Mortimer & Sunnucks on Executors, Administrator and Probate (20^th edition, 2002) paras.27-19.  Mr Kwok  however argues that revocation is not necessary since the Will is limited only to the Stall and the plaintiff only intends a limited grant, when the assets covered by the LA granted to the 1^st defendant had not included the Stall.  It is said that there is no point in revoking the LA just to give a grant to the plaintiff.

47.  In my view, this submission overlooks the fact that the 1^st defendant is not entitled to a general grant of letters of administration, quite apart from the fact that the grant of LA was obtained as a result of false and incorrect statement.  The 1^st defendant should only have applied for grant of letters of administration excepting the interest, rights, title and benefits of the Stall, which form the subject matter of the Will.  Instead, the 1^st defendant had chosen to take out a general grant of letters of administration and had further made a false and incorrect statement that the Deceased died intestate without qualification.  That being the case, the plaintiff is driven to seek a revocation of the LA, without which the plaintiff will not be able to obtain a grant of probate, albeit limited to the Will.  For reasons explained below, there is no merit in the submission that it serves no purpose to revoke the LA just to enable the plaintiff to obtain a grant of probate.      

Validity of the Will

48.  I turn to the issue relating to the validity of the Will.  The law is that unless suspicion attaches to the document, a testator’s execution is sufficient evidence of his knowledge and approval.  In the absence of fraud, the fact that a will has been read over to or by a capable testator, or the contents brought to his knowledge in some other way, is conclusive evidence that he knew and approved o f the contents of it: Tristram & Coote’s Probate Practice (29^th edition, 2002) para.34.49.   In the present case, there is nothing irrational or suspicious about the contents of the Will given the evidence that it had always been the declared intention of the Deceased to leave the Stall to the plaintiff.  It also follows from the evidence of Mr Hugo Chan, which I accept, that he had interpreted and explained the contents of the Will to the Deceased and he was fully satisfied that the Deceased understood and approved them, that there is no basis for the defence that the Deceased did not understand, approve or intend the contents of the Will. 

49.  Mr Kwok however argues that that the Deceased had not been advised, and he did not fully appreciate that he was bequeathing property not belonging to him.  Mr Kwok makes the point that neither the Tenancy Agreement nor the relevant statutes confers a right to inherit the Stall upon the Deceased’s death.  It is said that when attending to the execution of the Will, Mr Hugo Chan did not explain the Tenancy Agreement, although he had done so when attending to the execution of the Power of Attorney.  This last assertion has ignored Mr Hugo Chan’s evidence that he had raised with the Deceased the possibility of partial intestacy.

50.  Quite apart from this, as noted above, the question of whether the Deceased could bequeath and devise to the plaintiff by Will his “estate, rights, interests, title and benefit” of and in the Stall does not therefore arise for determination in these proceedings.  The defendants had abandoned the application to amend the defence to raise this point. 

51.  It is however relevant to note that under Public Markets Regulation, cap.132BO, Regulation 5(1) provides that no person shall carry on any business in a public market unless he … (b) is the legal personal representative of the tenant of a stall, or (c) has the permission in writing of the Director of FEHD.  Implicitly, a lawful personal representative of the estate of a market stall tenant, including an executrix appointed under a will, may carry on business at the stall.  A beneficiary to the estate of a tenant does not however enjoy such right.  Additionally, the fact that the Deceased had requested to allow the plaintiff to be substituted for him in the event of his death on a proforma document witnessed by a senior officer of the Urban Council is indicative of the Council adopting a policy whereby a tenant may appoint someone to take up the operation of the stall or the tenancy in the event of his death.  Thus viewed, the question of whether any rights, interest, title or benefits over the Stall was capable of being, or had been, bequeathed or given to the plaintiff by the creation of the Will is a less than clear and straightforward issue.  It cannot be readily concluded, as Mr Kwok seeks to do, that by the Will, the Deceased was bequeathing property not belonging to him.

52.  Moreover, section 3(2) of the Probate and Administration Ordinance, cap. 10 provides that the court shall have jurisdiction to make a grant of probate or administration in respect of a deceased person notwithstanding that the deceased person left no estate.   It shows that the court needs not be concerned with the subject matter of a will when deciding whether to grant probate.   It also follows that even if the Deceased could not validly dispose of any interests in the Stall by the Will, it does not follow automatically that the court cannot grant probate of the Will.

Should the Will be admitted to probate?

53.  Mr Kwok also argues that even if the Will is valid, the court should nevertheless refuse to admit the Will to probate because it lacks any dispositive effect.  Reliance is placed on the cases of Re Thomas, Public Trustee v. Davies [1939] 2 All E R 567 and Re the Estate of Fawcett [1941] 2 All E R 341.  In the case of Re Thomas, Public Trustee, Langton J made it clear that he was not laying down a rule or rules of practice, but simply considered that he had a duty and power to make limited construction of the testamentary documents before him because it was necessary to determine: (i) what documents were to be admitted to probate and (ii) to whom administration should be granted: at 572D-E.  He made similar points in the case of Re the Estate of Fawcett, emphasising that the construction was only for the simple purpose of deciding which of the documents before the court should be admitted to probate: at 342H-343E. These cases are no authority for saying that the court should readily embark upon construction of testamentary documents and their effects when deciding whether to admit them to probate.  On the contrary, it has always been recognized that the probate court should principally only be concerned with whether or not a document is entitled to probate as a testamentary paper and who is entitled to be constituted the personal representative of the deceased: Halsbury’s Laws of England (4^th edition) vol.17 para.775.   In the present case, the dispositive effect of the Will is not engaged.  There is also no justification in the present case to embark upon a meticulous and cumbersome exercise to see if the Will, including the appointment of executrix, disposes of any interests or property that belongs to the Deceased.  This is particularly so when the Probate Judge had at the pre-trial review directed for the matter to be dealt with separately, and the issue has never been pleaded and properly before the Court. 

54.  The Will, being a testamentary paper duly and validly executed by the Deceased, it should be admitted to probate. Subject therefore to any requisitions that the Registrar may raise, the plaintiff is entitled to a limited grant of probate based upon the Will.        

Withdrawal of the caveat

55.  The fact that the Will only relates to the Stall and that in respect of the residual estate, the Deceased died intestate and that the defendants are entitled to distribution over the residual intestate estate does not afford the defendants with reasons for opposing the limited grant sought by the plaintiff.  The caveat ought therefore be withdrawn.       

Conclusion

56.  For the reasons above, there is judgment for the plaintiff on the claim.  I order that:

(1)	the Letter of Administration of the estate of the Deceased issued to the 1st defendant be revoked.
(2)	the caveat entered by the 2nd defendant on his behalf and on behalf of the 1st defendant be withdrawn.
(3)	the Will be pronounced in solemn form and that subject to requisitions that may be raised by the Registrar, the plaintiff is entitled to a limited grant of probate, limited to the estate and interests under the Will.

57.  As to costs, Mr Kwok submits that costs should be paid out of the estate of the Deceased in that the 1^st defendant was sued as the administratrix of the Deceased’s estate.  In the case of the 2^nd defendant, it is said that since this is a probate action, the plaintiff would in any event have to serve notice of the proceedings on him even if he had not filed the caveat.  Accordingly, Mr Kwok argues that the costs of the 2^nd defendant should also be paid out of the estate. 

58.  I do not agree.  Although the 1^st defendant was named as the administratrix of the Deceased’s estate, she is sued in her personal capacity. She is not defending the action on behalf or for the interest of the estate.

59.  As for 2^nd defendant, the fact is that this probate action is very much the outcome of the caveat filed by the 2^nd defendant and his refusal to withdraw it.  Additionally, while the 2^nd defendant is an interested party on whom notice of the present probate action has to be given, he needs not take any part, let alone an active part, in the proceedings.  Instead, he has chosen to actively oppose the plaintiff’s action and has failed in the opposition.  He must therefore bear the costs consequences.  In my view, this is a case where the usual rule that costs should follow event should apply. Accordingly, there is an order nisi that the 1^st and 2^nd defendants pay the plaintiff the costs of the action, including all costs reserved, to be taxed if not agreed.