CHIANG LAI YUEN v. CHIANG CHI KIN AND ANOTHER

HCAP 17/2023

[2025] HKCFI 1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 17 OF 2023

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DECISION

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A.   INTRODUCTION

1.  This Decision deal with the following 3 summonses:

(1)  The 1^st defendant’s summons filed on 29 July 2024 for, inter alia, striking out the Statement of Claim and the present action (“the Striking Out Summons”);

(2)  The plaintiff’s summons filed on 25 September 2024 for, inter alia, an order that notice of this action be served on various interested non-parties pursuant to Order 15 rule 13A of the Rules of the High Court (Cap.4A, Laws of Hong Kong)  (“RHC”)  (“the Notice Summons”); and

(3)  The plaintiff’s summons filed on 17 April 2025 for joinder of 2 additional defendants and amendment of the Statement of Claim (“the Joinder and Amendment Summons”).

2.  The 2^nd defendant:

(1)  had no objection to the Striking Out Summons;

(2)  remained neutral to the Notice Summons;

(3)  adopted the same stance as that of the 1^st defendant in relation to the Joinder and Amendment Summons,

and had been excused from attending the substantive hearing on 29 April 2025.

B.   BACKGROUND

3.  Dr Chiang Chen (“the Deceased”)  passed away on 13 March 2022 at the age of 98.

4.  The Deceased was married to the 2^nd defendant (“the Wife”)  when he passed away. 

5.  He had 7 children (with his previous wife who had passed away long time ago)  as follows (in order of seniority):

(1)  Chiang Lai Wah;

(2)  Chiang Lai Wan;

(3)  Chiang Lai Ping, Agnes;

(4)  Chiang Lily;

(5)  Chiang Lai Ling;

(6)  Chiang Lai Yuen (i.e. the plaintiff); and

(7)  Chiang Chi Kin (i.e. the 1^st defendant).

6.  The present probate action was commenced by the plaintiff to challenge a will executed by the Deceased on 13 July 2019 (“the 2019 Will”), which:

(1)  appointed the Wife and the 1^st defendant as executors;

(2)  bequeathed the Deceased’s estate to the Wife and his 7 children in equal shares.

7.  The Deceased had also made 2 other wills which dealt with his entire estate[1].

8.  Firstly, a will dated 1 July 1988 (“the 1988 Will”), in which he:

(1)  appointed Chiang Lily as the sole executrix;

(2)  instructed that his shares in certain companies be sold and that the proceeds be used for certain charitable purposes;

(3)  set up a trust fund of $5 million, and to cause the income thereof to be paid to the Wife during her lifetime or until she remarried after his death;

(4)  instructed that, upon the death of the Wife or upon her getting remarried, the said $5 million be used for certain charitable purposes;

(5)  left the residuary estate to his 7 children equally.

9.  Secondly, a will made in March 1991 (“the 1991 Will”), which:

(1)  left his entire estate[2] to Chiangs’ Industrial Charity Foundation Limited (“BVI Foundation”), a BVI non-profit organisation assisting the charitable foundation set up by the Deceased to make donations and award sponsorships and scholarships for the education, research and development of industries and technologies;

(2)  named the 1^st defendant and Chiang Lily as the named joint executors, whereas Chiang Lai Wah was named as the substitute executrix in case any one of them shall die during the Deceased’s life time or renounce probate or refuse or be unable to act in the office of executor.

10.  It is noteworthy that:

(1)  The plaintiff contends that the 1991 Will is a valid will of the Deceased[3];

(2)  The 1^st defendant has admitted that the Deceased had made the 1991 Will, without putting forward any ground for challenging the validity thereof, in his Defence and Counterclaim.  In his 2^nd Affirmation, he has further expressly stated that:

“17. For completeness, I have also been advised and believe that:

17.1 Excluding the 2019 Will, the last will executed by [the Deceased] which dealt with the entirety of his estate is the 1991 Will. It is reasonably clear that none of the grounds now relied on by the Plaintiff to challenge the 2019 Will would apply to the 1991 Will.

  […]”

(3)  While the Wife had pleaded a non-admission in relation to the execution of the 1991 Will, she did not plead in her Defence and Counterclaim that she would challenge the validity thereof.

11.  The procedural background of the present action may be briefly stated as follows:

(1)  The plaintiff entered a caveat in respect of the Deceased’s estate first on 12 April 2022, which had subsequently been renewed;

(2)  Despite the pendency of the caveat, the Wife issued an application in April 2023 for grant of probate of the 2019 Will in common form.  However, no steps had been taken by the 1^st defendant nor the Wife to warn off the plaintiff’s caveat, or to issue a probate action;

(3)  The plaintiff then commenced the present probate action on 2 May 2023, and sought to challenge the 2019 Will.  The only relief prayed for by the plaintiff is “an order that the Court pronounces against the validity of the Purported 2019 Will”;

(4)  Both the 1^st defendant and the Wife counterclaim for the plaintiff’s caveat to be vacated and for the 2019 Will to be pronounced.

C.   THE 1^ST DEFENDANT’S ARGUMENTS

12.  The main argument made in support of the 1^st defendant’s application to strike out is straight-forward and simple.  For the sake of convenience, I would quote directly from the skeleton arguments lodged by Mr Bernard Man SC and Mr Keith Lam as follows:

“19. The following are well-established principles in relation to the nature of a probate action:

19.1 A judgment in a probate action is by nature in rem. It is thus incumbent on all those who have rival claims to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, with the legal consequences that probate of a will or letters of administration could be granted by the court properly: Li Cheong v Lee Kwai Tai (2020)  23 HKCFAR 116 at §42 (Fok PJ).

19.2 A probate action being of the nature of an action in rem and the court’s function being inquisitorial the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action)  who is entitled to representation: generally it will not (except in the case of a revocation action)  merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (under Order 62, rule 4)  but in other cases he must set up a positive case by way of counterclaim: Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148 at §16 (Cheung JA).

20. Thus, as explained in the following passages from Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (17^th ed., 1993) at pp.418-419:

“Where the plaintiff disputes the interest of a defendant he must allege this in his statement of claim, and where he disputes the interest by which another party claims to be entitled to a grant of letters of administration, he must show in his pleading that if the allegations which he makes are proved, he would be entitled to an interest in the estate.”

  “In his defence the defendant should not merely set out a case that answers the allegations in the particulars of claim; he should set out how his interest really arises. Thus, where the particulars of claim set up only the last of two or more wills and the defendant wishes to set up an intestacy, believing that the deceased left no valid will he should not merely plead against the will set up but should also mention the other wills and set out his case against them.”

(emphasis added)

21. In the present case, P (being a person seeking to oppose a particular will and setting up neither any will or intestacy)  is really in the position of a defendant contemplated in the above passage.

22.  The effect of these principles is that, save for a defendant who only intends to cross-examine the attesting witnesses under Order 62 rule 4, any party to a probate action challenging a will must set up a positive case as to whether probate of a particular will or letters of administration should be granted.”

13.  Heavy reliance has been placed by the 1^st defendant herein on the case of Re Estate of Payson Cha [2023] HKCFI 2675, in which the plaintiff applied for summary judgment (for a pronouncement against a disputed will)  on the basis that it was hopelessly bad.  The application was dismissed and it was held by this Court that:

“48. As explained, by this probate action, the plaintiff has taken the course of merely seeking to, in Mr Man SC’s own words, ‘get rid of’ the 1^st to 3^rd defendants, without taking one step further in asking the Court to make a grant of probate of a will or letters of administration in respect of the Deceased’s estate. As to whether the Deceased died intestate, the plaintiff’s stance is vague, in that she only stated in paragraph 12 of the Statement of Claim that she reserved her right to contend that a document signed by the Deceased dated 9 July 2020 is a duly executed will pursuant to section 5(2)  of the Wills Ordinance and/or that such a will has the effect of disentitling the 4^th defendant from receiving any part of the Deceased’s residuary estate. On that basis, in the Prayer, she asked, inter alia, for an order that there be ‘liberty for the plaintiff or the 4^th defendant to apply for an appropriate grant of representation in due course’.

49. Hence, while the grant of summary judgment in favour of the plaintiff would bring this probate action to the end, there will be no grant of probate or letters of administration in this probate action. In the event the plaintiff and the 4^th defendant could not come to any agreement at the end of the day (pursuant to the hope as expressed in paragraph 12.3 of the Statement of Claim), the matter would have to be resolved in another probate action.

50. It seems to me that this very special course of action taken by the plaintiff is unprecedented (indeed, neither of the legal teams was able to locate any authority in which a similar approach had been adopted)  and is against the well-established principles which were time and again referred to by the Courts in Hong Kong. In my view, the approach adopted by the plaintiff herein is wrong. The plaintiff is obliged to put forward the entirety of her positive case rather than simply asserting that the Purported Will is invalid (even if the plaintiff is right that there is no chance for the Purported Will to be admitted to probate), because the question of probate in relation to the Deceased’s estate has to be decided by the Court once and for all.

51. Therefore, I take the view that the summary judgment application must be dismissed. The Court should not adjudicate the matter on such a piece-meal basis. All issues should be placed before the Court.

[…]

54.  […] the plaintiff’s claim, as it now stands, is defective in the sense that it has not pleaded all the necessary issues.” 

14.  Having been refused leave to appeal by this Court, the plaintiff in Re Estate of Payson Cha made a renewed application to the Court of Appeal[4], which dismissed the application, and held that:

“30. It was well established in Li Cheong and Choy Po Chun that all those parties who have rival claims in a probate action should advance their claims ‘simultaneously’ so that the probate court could adjudicate on them in a judgment which would bind all rival claimants ‘once and for all’, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly. This is the basis upon which the Judge concluded that the ‘piece-meal’ approach adopted by the plaintiff, and in particular her ‘vague’ stance on the July Document, is wrong.

31. The plaintiff seeks to argue that Li Cheong and Choy Po Chun are distinguishable as neither of them concerns the situation in the present case where a plaintiff merely claims for a pronouncement against the validity of a purported will without seeking a grant of representation. The Judge pointed out in [6] and [7] of the Leave Decision that the principles articulated in Li Cheong (at [42])  and Choy Po Chun (at [16])  are of general application in probate actions. We agree. We do not consider that a valid distinction can be drawn between the two cases and the present case. There is nothing in Li Cheong and Choy Po Chun to suggest that the principles stated above only apply to cases where a party seeks to prove the will in solemn form or a grant of representation, but not where a party seeks to pronounce against a will. As submitted by the 3^rd defendant, what is important is the nature of a probate action which underlines the applicability of these principles does not turn on which party first instituted the probate proceedings in relation to where they stand on the validity of a disputed will.

32. In our view, the Judge is correct in holding that the plaintiff has failed to plead all the necessary issues, particularly in relation to the July Document, in the Statement of Claim. In the pre-action correspondence, the plaintiff had indicated that she would seek a declaration that the Deceased died intestate and a grant of letters of administration of the Estate to herself. The Statement of Claim, however, merely pleads that the plaintiff reserves her right to contend that the July Document is a duly executed will under section 5(2)  of the Wills Ordinance. Evidently, the plaintiff has not pleaded the entirety of her case. As a result, it is not possible to discern from the Statement of Claim whether her position is that the Deceased died with a will, or that he died wholly or partially intestate. The plaintiff’s approach clearly falls foul of the requirement that rival claims should be advanced simultaneously in a probate action (Li Cheong at [42]).

33.  We also agree with the 3^rd defendant that the plaintiff’s failure to plead her case on the July Document is at odds with the requirement under Order 76 rule 5 of the RHC that a party to a probate action must describe ‘any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge’.  On its face, the July Document relates, or at least potentially relates, to the same subject matter of this probate action, i.e. the Estate of the Deceased.  Absent a proper plea by the plaintiff on the July Document, it would not be possible for the Court to perform the inquisitorial function and to make a positive finding as to whether the Deceased died intestate, as explained in Choy Po Chun at [16].”

15.  On the strength of the above, it was argued on behalf of the 1^st defendant that:

(1)  The situation in the present case is the same as that in Re Estate of Payson Cha, as the plaintiff herein is only seeking an order to pronounce against the 2019 Will, with no other relief sought, and no positive case on what grant should be made;

(2)  This means that, even if the Court is to pronounce against the 2019 Will at the conclusion of this probate action, it cannot rule on which will should be admitted to probate or whether there should be an intestacy;

(3)  The present probate action is therefore prima facie defective and liable to be struck out.

16.  In his oral reply submissions, Mr Man SC also highlighted the following propositions which he submitted would make it clear that the striking out application must succeed:

(1)  For a probate action which is to be properly constituted, the plaintiff needs to be in a position to plead a claim, which if made out, would justify the relief sought;

(2)  If a plaintiff cannot plead a claim which, if made out, would enable the Court to make a grant, then the action is defective;

(3)  The plaintiff herein is in no position to do so because her contentions, even if fully made out, would not enable her to seek a grant;

(4)  The proposed amendment does not salvage the plaintiff’s claim because she has no interest in seeking a grant of the 1991 Will.

D.   THE PLAINTIFF’S ARGUMENTS

17.  In a gist, it was argued by the plaintiff that the principle underpinning the Re Estate of Payson Cha decision is that all rival claims in probate action should be advanced simultaneously, so that the probate court could adjudicate on them once and for all, rather than adjudicating the matter on a piece-meal basis.  However, such a decision has no application to the plaintiff’s claim herein because:

(1)  While the plaintiff in Re Estate of Payson Cha had a viable claim herself on the validity/invalidity of an earlier document, the plaintiff herein cannot presently advance a rival probate claim because she is not in a position to seek an order for grant of probate of the 1991 Will (since she is neither an executrix nor a beneficiary thereof);

(2)  Despite the plaintiff’s inability to seek an order for grant of probate for the 1991 Will, the Court is still entitled, in the circumstances of the present case, to make a finding that the 1991 Will is valid, and whereupon the executors of the 1991 Will may apply for a grant of probate in a non-contentious way.  If they fail to do so, the plaintiff may apply for a grant of letters of administration with the will annexed to her pursuant to section 35(1)(f)  of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong)  (“PAO”);

(3)  Hence, there is no abuse of the court’s process and no infringement of the Re Estate of Payson Cha principle by the plaintiff.  At the very least, it is not plain and obvious that that is the case, and as such the plaintiff’s claim should not be struck out.

E.   DISCUSSION

E1.  The Striking Out Summons

18.  It is worth emphasising that a judgment in a probate action is by nature in rem.  It is thus incumbent on all those who have rival claims to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, rather than on a piece-meal basis.  The court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate.

19.  With the above in mind, I am of the view that the Re Estate of Payson Cha case can clearly be distinguished.  I only need to refer to paragraph 12 of the Statement of Claim therein to illustrate the point:

“12. For completeness and the avoidance of doubt:

12.1 The Deceased also left a signed document, dated 9 July 2020 and witnessed by the 2^nd Defendant, in which he expressed his wish to leave certain cash sums to a number of specified individuals, including the 4^th Defendant.

12.2 The Plaintiff reserves the right to contend that this document is a duly executed will pursuant to section 5(2)  of the Wills Ordinance (Cap 30)  and/or has the effect of disentitling the 4^th Defendant from receiving any part of the Deceased’s residuary estate.

12.3  The Plaintiff commenced this action seeking the relief prayed for below at this stage for the purpose of obtaining a determination that the Purported Will is invalid and that therefore the 1^st to 3^rd Defendants have no basis to interfere or intermeddle with the administration of the Estate.  It is hoped that after the Court rules in favour of the Plaintiff, the Plaintiff and the 4^th Defendant can discuss and agree on how the Estate should be administered, and that an appropriate uncontested application for grant of representation can be made in due course.”

(emphasis added)

20.  It can be seen that the plaintiff in Re Estate of Payson Cha did not put forward any positive case in relation to the signed document dated 9 July 2020 at all.  She only “reserved her right” to contend that this document was a duly executed will.  The plaintiff herein is different: While she admittedly is not in a position to seek any relief for the grant of probate of the 1991 Will, it is clearly her stance that the 1991 Will is a valid one and is the last will of the Deceased.  In this sense, she does have a positive case as to what probate should be granted.

21.  The only problem which the plaintiff has is that, as the matter now stands, in the event the Court finds in her favour at the trial, the Court is not in a position to find that the 1991 Will or any other will is the last valid will of the Deceased (or if there is any valid will at all), because not all interested parties are before the Court.  

22.  In this regard, it is noted that the individuals / entity who are entitled to challenge the validity of the Deceased’s wills which deal with the entirety of his estate are:

(1)  The Deceased’s 7 children;

(2)  The Wife;

(3)  The BVI Foundation;

(4)  The Secretary for Justice.

23.  However, at the moment, only a few of the above are parties to this action.

24.  The plaintiff therefore seeks to serve a notice under Order 15 rule 13A of the RHC on the other siblings of the Chiang family, the BVI Foundation and the Secretary for Justice (“the Notice”).

25.  Pausing here, it was contended by Mr Shieh SC that those who are listed under rule 19 of the Non-Contentious Probate Rules (Cap.10A, Laws of Hong Kong)[5] are also entitled to challenge the validity of wills.  With respect, I disagree.  Indeed, as pointed out by Mr Man SC, despite the plaintiff’s said contention, she is not seeking leave to serve the Notice on any creditors of the Deceased, nor did she confirm in her supporting affidavit that the Deceased had no creditor at all.

26.  I now come back to the effect of the Notice.  If any of the parties who are served is minded to challenge the validity of any of the aforementioned wills, such a party is at liberty to put forward his/her case herein, and the Court would be able to adjudicate on the matter once and for all, and will be in a position to rule on which will should be admitted to probate or whether the Deceased died intestate.  In short, all interested parties will be given a chance to advance any rival claim simultaneously herein.

27.  I accept the plaintiff’s argument that it does not matter that the Court cannot make an order after trial, for example, for the probate of the 1991 Will be granted right away.  However, if it is the Court’s finding after trial that such a will is the last will of the Deceased, this finding would be binding on all the parties joined and all those who have been served.  What is left to be done is for the relevant executor(s)/administrator(s)  to apply for a grant under the Non-Contentious Probate Rules.  No further adjudication of the Court would be required.  Hence, the problem of “piece-meal adjudication” would not arise.

28.  Mr Man SC emphasised time and again that the Court should only take the plaintiff’s Statement of Claim into account, and consider whether, if the averments therein are made out, it would justify the relief sought.  As far as that proposition is concerned, I have no doubt that if the averments pleaded in the Statement of Claim are proved, the Court is in a position to grant the relief sought, namely, “an order that the Court pronounces against the validity of the Purported 2019 Will”.

29.  Mr Man SC went further, and submitted that that is not enough to deal with the whole probate matter, because the plaintiff is not in a position (as she is not an interested party)  to ask for any relief in relation to the 1991 Will, and the Court, upon making adjudication in the present case, is not in a position to make a grant.

30.  However, as aforesaid, in my view, so long as all the relevant parties are before the Court or are bound by the Judgment to be made by the Court in the present probate action, it matters not that the Court cannot make an order for grant of probate right away.  It is enough that the Court is in a position to make a finding on which will is the last will and whether the Deceased died intestate.

31.  The 1^st defendant then argued that since Chiang Lai Yuen is not in a position to propound the 1991 Will, she is not entitled to commence the present probate action at all.  It was said that all she can do is to wait for the commencement of a probate action by the 1^st defendant and the Wife, and then she may plead her case as a defendant.

32.  With respect, I disagree with such a suggestion.  I cannot see why Chiang Lai Yuen may only take part in this probate action as a defendant but not as a plaintiff.  As explained above, in my view, the purpose of a proper probate action can be achieved herein even though this probate action is commenced by a party who is not in a position to propound an earlier will.  When considering whether a probate action should be struck out by virtue of the principles as explained in Re Estate of Payson Cha, the Court has to look at the circumstances of the whole case.  The Court should also bear in mind the underlying objectives of the RHC.  It is not conducive to achieving such objectives for the Court to strike out this probate action and let the defendants decide when another probate action should be commenced again.

33.  In this regard, Mr Man SC has explained the reason why the 1^st defendant and the Wife have not commenced any probate action themselves – he said that they consider that the priority of the Chiang family is to sort out “a wider family dispute”.  Without disrespect to counsel, I do not propose to go into the details thereof, as that is not a matter which this Court should take into account for the present purpose[6].  It suffices for me to reiterate that it is not right to treat it as if the executors of the 2019 Will have the absolute right to decide on the timing of the probate action.   

34.  The 1^st defendant then relied on Order 76 rule 9(1)  and (2)  of the RHC which provide that:

“(1)  Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.

(2)    In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would be entitled to an interest in the estate.”

(emphasis added)

35.  These paragraphs in the RHC need only be dealt with briefly:

(1)  In her Statement of Claim, the plaintiff does allege clearly that she disputes the entitlement of the 1^st defendant and the Wife to apply for probate pursuant to the 2019 Will on the ground that it was not validly made.  Hence, Order 76 rule 9(1)  of the RHC is satisfied;

(2)  Order 76 rule 9(2)  of the RHC is not engaged in the present case, because there is no party which claims to be entitled to a grant of letters of administration.

36.  To conclude, I am of the view that this is not a plain and obvious case that the Statement of Claim should be struck out.

37.  The Striking Out Summons is therefore dismissed.

E2.  The Notice Summons

38.  Pursuant to the Notice Summons, the plaintiff only sought leave to serve the Notice on the other siblings and BVI Foundation Limited.

39.  Having heard Mr Man SC’s oral submission in court that the Secretary for Justice also has standing to challenge the 1991 Will, Mr Shieh SC for the plaintiff made an oral application that leave should also be granted for the Notice to be served on the Secretary for Justice.

40.  Mr Man SC confirmed that in the event this probate action survives the 1^st defendant’s striking out application, he has no objection for the Court to make an order in terms of the Notice Summons as well as to add the Secretary for Justice to the list of recipients to be served. 

41.  An order should therefore be made accordingly.

E3.  The Joinder and Amendment Summons

42.  By the Joinder and Amendment Summons, the plaintiff asks for leave to join Chiang Lily and Chiang Lai Wah as additional defendants herein, and seeks the relief that an order for grant of letters of administration with the 1991 Will annexed to the plaintiff (i)  pursuant to section 35(1)(f)  of the PAO, on the basis that the 1^st defendant, Chiang Lily and Chiang Lai Wah have failed to apply for probate of the 1991 Will; (ii)  alternatively, by virtue of section 36 of the PAO, on the basis that it would be necessary and convenient to do so and that Chiang Lai Wah has at all material times been a resident out of Hong Kong.

43.  In this regard, Mr Shieh SC and Mr James Man submitted that:

“It is not disputed by [the 1^st defendant] that [the plaintiff] (who is a beneficiary)  has standing to pronounce against the 2019 Will. If the Court pronounces against the 2019 Will, and if [the 1^st defendant], [Chiang] Lily and [Chiang Lai Wah] do not apply for probate of the 1991 Will (the validity of which is not in dispute), [the plaintiff] can apply under s.35(1)(f)  (where executors do not apply for probate)  of the Probate and Administration Ordinance (Cap.10)  for letters of administration with the will annexed be granted to her (or alternatively under s.36). However, at this juncture, it might be said to be premature for [the plaintiff] to do so since the action is facing a strike out application and there is no clear indication whether [the 1^st defendant], [Chiang] Lily and [Chiang Lai Wah] would apply for probate of the 1991 Will in the alternative (in the event the Court pronounces against the 2019 Will)  if the action is not struck out and then proceeds to trial.”[7]

(emphasis is mine)

They added subsequently that:

“(2)  On the footing that the Court has pronounced against the 2019 Will and found the 1991 Will to be the true last will of Dr. Chiang, [the 1^st defendant and Chiang] Lily (as the named joint executors of the 1991 Will)  and [Chiang Lai Wah] (as the named substitute executrix of the 1991 Will)  would be the person who could apply for grant of probate of the 1991 Will in a non-contentious way.

(3)  And if they fail to do so, [the plaintiff] can apply for grant of letters of administration with the will annexed to her pursuant to PAO s.35(1)(f). In this regard, it should be noted that [the plaintiff] is within the classes of persons entitled to a grant of administration with the will annexed under r.19 of the Non-Contentious Probate Rules (Cap.10A), as she is a person “having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate”: r.19(vi). Alternatively, PAO s.36 also confers a broad discretion to the court to pass over the executor and appoint a proper person to be the administrator where it is “necessary or convenient” to do so”, and where the executor is at the time of the death of the deceased a resident out of Hong Kong ([Chiang Lai Wah] has been a resident out of Hong Kong).

(4)  Thus, [the plaintiff] does have an ultimate interest as to what should be the court’s grant in respect of the estate, even though the interest is conditional upon [the 1^st defendant], [Chiang] Lily and [Chiang Lai Wah] failing to apply for grant of probate of the 1991 Will.

(5)  At this juncture, it might be said to be pre-mature for [the plaintiff] now to plead a claim for a grant of administration with the will annexed under PAO s.35(1)(f)  or s.36 since [the 1^st defendant] is applying for the whole claim to be struck out. [The 1^st defendant], [Chiang] Lily and [Chiang Lai Wah] have not indicated whether, if the claim is not struck out and is permitted to proceed to trial, any of them would apply for probate of the 1991 Will in the event that the Court pronounces against the 2019 Will.

(6)  In either scenario (i.e. [the 1^st defendant]/[Chiang] Lily/[Chiang Lai Wah] applying for grant of probate of the 1991 Will, or [the plaintiff] applying for grant of administration under s.35(1)(f)  or s.36), a complete resolution as to what should be the court’s grant in respect of Dr. Chiang’s estate would be achieved.

(7)  Purely out of the abundance of caution, we have applied to amend the SOC to plead a PAO s.35(1)(f)  or s.36 claim. That is to cater for the possibility that, contrary to our primary case, the Court takes the view that there is no uncertainty that none of [the 1^st defendant], [Chiang] Lily and [Chiang Lai Wah] would apply for probate of the 1991 Will (in the event the strike-out fails, and in the event that the Court pronounces against the 2019 Will)  and so such a claim by [the plaintiff] would not be pre-mature. It is trite that the Court should not exercise the power to strike out if the proposed amended pleading can survive the strike-out: HKCP 2025, §18/19/4 (p.565).”[8]

44.  Mr Shieh SC also made it clear at the hearing that, if the Court accepts the plaintiff’s primary argument that the plaintiff’s claim is not defective, there is no need for the proposed amendments to be made.

45.  In my view, leave should not be granted for the proposed joinder/amendments to be made, for it is clearly premature for such a case to be run.  At the moment, it is the 1^st defendant’s and the Wife’s stance that the 2019 Will is the last will of the Deceased, and therefore they are counter-claiming for the pronouncement of such a will rather than the 1991 Will.  They are of course entitled to take such a stance (and have it adjudicated by the Court), and it is understandable that, as a result, they have not applied for probate for the 1991 Will.  In such circumstances, it is a non-starter for the plaintiff to complain at this stage (or at any stage before the Judgment of the action herein is handed down)  that the 1^st defendant (together with Chiang Lily and Chiang Lai Wah)  have not applied for probate of the 1991 Will. 

46.  The situation would be different if there is still inaction on the part of the relevant executors upon the Court’s conclusion that the 1991 Will is the last will of the Deceased.  However, that is something to be dealt with in future, not now.

47.  The Joinder and Amendment Summons is therefore dismissed.

F.   ORDER

48.  To sum up:

(1)  The Striking Out Summons and the Joinder and Amendment Summons are dismissed;

(2)  There be an order in terms of paragraphs 1 to 4 of the Notice Summons, save that the Secretary for Justice be included as an additional party to be served.

G.   COSTS

49.  For the sake of clarity, I will deal with the matter of costs in relation to the 3 summonses separately below on nisi basis.

G1.  The Striking Out Summons

50.  As the 1^st defendant’s application for striking out is not successful, prima facie he should bear the plaintiff’s costs of the Striking Out Summons.

51.  However, it should be noted that the plaintiff’s claim is only salvaged by the Notice Summons (with the addition of the Secretary for Justice as one of the recipients of the Notice at the hearing).

52.  On the other hand, I do not accept the 1^st defendant’s main argument in support of the Striking Out Summons that “it is unclear what the plaintiff’s position is as to how the estate of the Deceased is to be administered, for example, whether it is to be administered as per the 1991 Will, or under intestacy rules under Hong Kong law”[9].

53.  Having considered the matter in the round, I make a costs order nisi that there be no order as to the costs of the Striking Out Summons. 

G2.  The Notice Summons

54.  The plaintiff proposed in paragraph 5 of the Notice Summons that the costs thereof should be in the cause of the action. 

55.  I agree that this is an appropriate costs order, and I make an order nisi to that effect, with certificate for two counsel.

G3.  The Joinder and Amendment Summons

56.  The Joinder and Amendment Summons has been dismissed.  There is no reason why the plaintiff should not bear the defendants’ costs thereof. 

57.  I will therefore make a costs order nisi to that effect.

58.  However, it is noted that:

(1)  By the time this summons was taken out on 17 April 2025, the 1^st defendant’s counsel have already lodged and served their skeleton argument[10];

(2)  Minimal time of the hearing has been taken up by this summons;

(3)  The Wife has not appeared at the hearing, and simply adopted the 1^st defendant’s arguments.

59.  I therefore envisage that the amount of costs which has been incurred by the defendants in relation to this summons should be minimal. 

60.  I therefore urge parties to make a real effort in coming to an agreement on the amount of the costs payable by the plaintiff.

G4.  Costs order absolute and summary assessment of costs

61.  The above orders nisi shall become absolute in the absence of application to vary (which, if any, shall be disposed of on paper)  within 14 days hereof.

62.  Unless any application for variation of the cost order nisi in relation to the Joinder and Amendment Summons is made within time, parties shall use their best endeavour to agree on the 1^st and 2^nd defendants’ respective costs payable by the plaintiff.  If no agreement can be reached, the 1^st and 2^nd defendants shall lodge and serve their respective statements of costs within 14 days after the expiry of the said 14-day period.  The plaintiff shall lodge and serve her statements of objection within 7 days thereafter.  Summary assessment of the costs of the Joinder and Amendment Summons will be conducted on paper (no matter whether any statement of objection is lodged within time)  thereafter. 

63.  The costs agreed/assessed shall be paid by the plaintiff within 14 days after agreement/assessment.