LIU ZUJIAN v. CHIU CHI HANG

HCAP 20/2024

[2026] HKCFI 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 20 OF 2024

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DECISION

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INTRODUCTION

1.  This is the substantive determination of the application of Liu Zujian, the Plaintiff, by a Summons dated 31 March 2025 (the “Summons”) for summary judgment against the Defendant, Chiu Chi Hang.

2.  By the Summons, the Plaintiff seeks final judgment against the Defendant for the following order: -

(1)  That the certified true copy of the will in Chinese dated 12 January 2016 (“2016 Certified Copy Will”) of the late Chiu Yat Chung (趙一中) (the “Deceased”) be propounded in solemn form, or a declaration that the 2016 Certified Copy Will is the valid last will of the Deceased; and

(2)  The Plaintiff be granted probate of the 2016 Certified Copy Will as sole executrix and trustee of the Deceased’s estate (the “Estate”).

3.  Through the good sense of counsel, the only issue that needs to be resolved by this Court, on summary basis, is whether the Will made by the Deceased in 2016 (the “2016 Will”) had been revoked because an original copy of the same could not be found in a safe deposit box of the Deceased.

4.  The Plaintiff’s case is that the Deceased had duly executed his last will in Chinese dated 12 January 2016, namely, the 2016 Will, for which the 2016 Certified Copy Will is a certified copy thereof. The certification was done by a solicitor, Leung Tat Kin Anthony (“Anthony Leung”) who was then the sole proprietor of Messrs. Leung & Associates (“L&A”).

5.  The Defendant has taken out a summons on 27 October 2025 to seek leave to amend his Defence (the “Amendment Summons”). The main purpose of the proposed amendments is to add the revocation issue to the pleading. Mr Li SC opposed the application. However, I am of the view that this Court should, for the purpose of resolving disputes efficiently and fairly, allow the Amendment Summons. Even if the Amendment Summons is not allowed, for the purpose of the summary judgment application, this Court would have to deal with the revocation point in any event. It does not depend on whether the point is in the Defendant’s pleadings or not. In any event, Mr Li SC was able to deal with the revocation point in his submissions, and thus no prejudice is suffered by the Plaintiff.

MATERIAL FACTS

6.  The Deceased was born on in Zhongshan, the Mainland, China on 8 March 1962. He was a Hong Kong permanent citizen. He was also a businessman with substantial assets. He was in hotel management businesses and invested in real estates in the Mainland, China and and Hong Kong.

7.  The Deceased discovered that he had liver cancer in December 2009. He passed away on 18 August 2016 at the age of 54 in his home in Zhuhai.

8.  The Deceased’s lawful wife is Madam Zheng. Madam Zheng also holds a HKID card. The Defendant is the only son of the Deceased and Madam Zheng. The Defendant was born on 24 December 1988, and he also holds a HKID card. The Defendant married Ms Lin Cong in Hong Kong on 6 June 2016.

9.  The Deceased had a second family with the Plaintiff. Chiu Chi Yui (“Chi Yui”) is their son (the “2^nd Family”). The Plaintiff started to work for the Deceased in 2003. She had had accompanied the Deceased to attend business meetings as a manager of his businesses. The Deceased started romantic relationship with the Plaintiff in 2004. Out of their relationship, Chi Yui was born in Hong Kong on 3 September 2010. He is now 15 years old. The birth certificate states that the Deceased was Chi Yui’s father.

10.  In around 2015, the Deceased communicated his intention to execute a will in Hong Kong to his good friend Mr Larry Lo. The Deceased further explained to Mr Larry Lo that he wanted to execute a will in Hong Kong to give his estate to the Defendant and Chi Yui equally after his demise.

11.  The Deceased followed Mr Larry Lo’s recommendation and retained solicitor, Mr Anthony Leung of L&A to prepare a will for the Deceased.

12.  Mr Anthony Leung’s evidence shows that the Deceased had reviewed the draft will and was satisfied with its contents before executing it. In relation to the preparation of the 2015 Will and later the 2016 Will, Mr Anthony Leung deposed that it was part of the Deceased’s instructions that the will was to be drafted in Chinese so that he could understand and confirm the contents, and that the draft should be prepared for his perusal and approval before execution.

13.  Also, according to Mr Anthony Leung, it is his practice that he would advise client that an executed will should not be stapled and/or clipped together with any other documents, and that the client should amend the content of an executed will through lawyers.

14.  The Deceased executed his will at a restaurant in Hong Kong with attestation by Mr Anthony Leung and his colleague dated 9 October 2015 (the “2015 Will”).

15.  The 2015 Will contains nearly identical provisions as the 2016 Will except that by the 2016 Will, the Royalton Property was given to the Defendant and that the 2015 Will provides for the bequest of the Deceased’s shares in Safe On Enterprises Limited to the Defendant.

16.  Later, Mr Larry Lo was informed by the Deceased that he would like to amend the 2015 Will. On 12 January 2016, the Deceased executed a will which is the 2016 Will at L&A’s office. The Deceased’s execution of the 2016 Will was attested by Mr Anthony Leung and his colleague. At the time of execution of the 2016 Will, Mr Anthony Leung first read out every clause of the 2016 Will and the Deceased also reviewed in detail before execution.

17.  The Deceased’s testamentary capacity was confirmed by Mr Anthony Leung that there was no sign of illness. The Deceased conversed normally with all other attendees on both occasions. There is no evidence to challenge the testamentary capacity of the Deceased.

18.  The Deceased further requested one certified true copy of the 2016 Will for his safekeeping, so that the certified true copy of the 2016 Will would be the one which evidenced his late wishes if the original was lost accidentally. In relation to both the 2015 Will and the 2016 Will, Mr Anthony Leung confirmed that it was not the practice of his firm to keep the original of the will.

19.  The Plaintiff’s case is that sometime in February 2016, (1) the Deceased passed a sealed envelope (the “Sealed Envelope”) to her and told her that it contained a true copy of his last will; (2) the Deceased also informed the Plaintiff that the original of the will was kept in a safe deposit box (the “Safe Deposit Box”) (or indeed more correctly a safe) at the Deceased’s residence in Zhuhai; (3) the Deceased had further given the Plaintiff a piece of paper in writing dated 5 February 2016 which was signed by the Deceased entitled “公司架构” (the “Company Structure Document”) to assure the Plaintiff of his estate distribution according to his wishes .

20.  The Deceased further informed the Plaintiff that she should open the Safe Deposit Box with the Defendant after his death. The Safe Deposit Box could be opened by a key given to the Plaintiff by the Deceased with the pass code known to the Defendant. The Deceased told the Plaintiff that he had already informed the Defendant about the contents of the will which was that the Defendant and Chi Yui would have equal share of the estate of the Deceased.

21.  The Plaintiff stayed with the Deceased until his final days and took care of him.

22.  In around late July or early August 2016, the Plaintiff assisted the Deceased to organise the foreign currencies stored in the Safe Deposit Box, during which the Plaintiff observed that the original of the 2016 Will was placed inside the Safe Deposit Box.

23.  It is the Plaintiff’s case that the Deceased had never asked her to return the Sealed Envelope.

24.  According to the Defendant, the Plaintiff told him that the Deceased had made a will sometime after the death of the Deceased in August 2016 and that the will was in the Safe Deposit Box.

25.  The Defendant’s case is that in September 2017, he came to obtain a copy of the 2016 Will from L&A. Nonetheless, the Defendant has never explained why he did not then open the Safe Deposit Box with the Plaintiff to look for the original of the 2016 Will.

26.  Importantly, there were no challenges to the content of the certified copy of the 2016 Will by the Defendant before the institution of the present proceedings. The Defendant never inform the Plaintiff that the 2016 Will cannot be performed as some shares had somehow been transferred to a nominee of the Deceased.

27.  The Plaintiff also submitted that the Defendant had not done any search for the original of the 2016 Will but persistently refused to open the Safe Deposit Box until forced by an order of the Court to do so.

28.  As to the Defendant’s explanation that the Deceased told him to open the Safe Deposit Box until the Deceased affairs had been sorted out, I must say that I find the explanation to be not capable of being believed. A necessary step to sort out the affairs of the Deceased is to inspect and take stock of the content of the Safe Deposit Box.

29.  Further, as a matter of fact, the Defendant has not deposed to what the affairs were and whether they had been sorted out or not.

30.  It is a fact that the Plaintiff has repeatedly requested the Defendant to open the Safe Deposit Box to retrieve the original of the 2016 Will but to no avail. In the WeChat messages between the Plaintiff and the Defendant, it can be seen that: -

(1)  Madam Zheng and the Defendant seldom replied to the Plaintiff’s WeChat messages concerning the opening of the Safe Deposit Box;

(2)  Even though an appointment had been made for opening the Safety Deposit Box, the Defendant postponed the opening of the Safe Deposit Box to at least one year after the death of the Deceased (“家族是會在中哥往生一週年紀念日。讓他的神位安放回老家進行祭祀的。到了這一天我們才把他的一切公開吧！”).

31.  The Safe Deposit Box was still not opened a year after the Deceased’s death.

32.  The Plaintiff had no alternative but to open the Sealed Envelope. She instructed her former solicitors Messrs Fred Kan & Co (“FK”) to write to the Defendant on 25 October 2017 to attend the opening of the Sealed Envelope at the scheduled appointment at 3pm on 15 November 2017 at the office of Messrs Lam Lai & Lee (“LL&L”). But the Defendant chose to absent himself from the event.

33.  After the opening of the Sealed Envelope revealing that there was the 2016 Certified Copy Will, the Defendant further delayed the application for the grant of probate by not producing the original of the 2016 Will.

34.  In March 2018, the Plaintiff had to commence court proceedings to compel the Defendant to produce the original of the 2016 Will and other testamentary papers of the Deceased. The Defendant vigorously contested the proceedings.

35.  The parties did resort to mediation, but the last attempt failed on 31 December 2021.

36.  Hence, the present action was commenced on 18 June 2024.

37.  The Defendant filed his defence after an unless order was imposed on 5 September 2024.

38.  The Plaintiff also submitted that in the interim period, the Defendant had intermeddled with assets of the estate of the Deceased. However, this is not an issue this Court needs to resolve in the present application.

39.  The Plaintiff continued to press the Defendant to open the Safe Deposit Box in Zhuhai after this Action has commenced. The Defendant was not cooperative. This is many years after the death of the Deceased. In my view, there are not credible explanations.

40.  Deputy High Court Judge M K Liu rightly ordered the parties to open the Safe Deposit Box on 11 September 2025.

41.  The Safe Deposit Box was finally opened on 26 September 2025 in Zhuhai. The original of the 2016 Will was not found in the Deceased’s Safe Deposit Box. This gives rise to the Defendant’s case that the 2016 Will was revoked by the Deceased.

42.  To prove that the Defendant could have opened the Safe Deposit Box with or without the key possessed by the Plaintiff, the Plaintiff has conducted her own exercise to open another safe deposit box (which is the same model as the Safe Deposit Box) twice on 20 October 2025 and 22 October 2025, respectively. On each occasion, the Plaintiff invited two different locksmiths, and both could easily open the safe deposit box. Both locksmiths were able to open the safe deposit box with their own tools and to shut the safe deposit box without keys and/or pass code. The Defendant has not produced evidence to the contrary.

APPLICABLE LEGAL PRINCIPLES

43.  It is now well established that although the Court adopts a more cautious approach, summary judgment may be granted in a probate action.

44.  G Lam JA in Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29 at §§2-3 held: -

“2. That summary judgment can in principle be given in a probate action to propound a will in solemn form is not in dispute: Re Estate of Lau Siu Wah, deceased [2005] 1 HKC 364, [13]–[19]; Re Estate of Yau Tung Hoi, deceased (HCAP 9/2016, [2017] HKEC 477, 10 March 2017), [16]. Such an application nevertheless needs to be approached with care, having regard to the special nature and features of a probate action, of the role of the court therein and of an order pronouncing in favour of a will, as explained in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, [15]–[20]. At the end of the day, the person propounding a will “must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator”: Barry v Butlin (1838) 2 Moo PC 480, 482.

3. Summary judgment is, of course, for clear cases, whether in probate or other cases. Where the plaintiff has on his evidence established the constituent elements of his cause of action, it is for the defendant to show an issue in dispute that ought to be tried or that for some other reason there ought to be a trial. In setting up her defence the defendant must condescend upon particulars; the mere assertion in an affidavit of a given situation is not sufficient. Where the defendant has raised factual disputes, the court may nevertheless enter judgment summarily if the defendant’s allegations are not credible. But where the allegations cannot be dismissed in this way, the court will not conduct a trial by affidavit.”

45.  The matters needed to be proved to propound a will is helpfully summarised by Recorder Eugene Fung SC (as he then was) in Re Estate of Chan Fook Lai (Deceased) [2021] HKCFI 670 (CFI) at §20: -

“20. The general principles for propounding of a will (in the absence of any allegation that the will was procured by fraud or undue influence) may be summarised as follows:

(1) A person who propounds a will has the legal or persuasive burden of proving on balance of probabilities that:-

(i) there was due execution of the will;

(ii) the testator was of testamentary capacity; and

(iii) the testator knew and approved of the contents of the will

See Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §§171-173 (Riberio PJ).

(2) If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenging an issue. If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities. See Nina Kung (above) at §176 (Riberio PJ).”

46.  Further, the Court has the jurisdiction to propound certified true copy will of the deceased: Blyth v Sykes [2019] EWHC 54 (Ch). The English Court held that “A document is usually certified as being a true copy of the original where the original is not readily available for inspection” at §77. (See also Leung Sze Sum Cindy v Leung Sze Sheung Pauline [2022] HKCFI 793 per Deputy Judge Bernard Man SC at §53.)

47.  Subject to the issue of revocation, I am satisfied that the 2016 Will was duly executed by the Deceased. The content of the 2016 Will reflect the Deceased’s actual and real intention on the distribution of his assets upon his demise. I accept the evidence of Mr Anthony Leung. The statutory requirements for formal validity of the 2016 Will are complied with. (See s.5(1) of Wills Ordinance (Cap 30)). Mr Dawes SC for the Defendant sensibly did not contest otherwise.

48.  I am also satisfied that the Deceased did tell Mr Anthony Leung that if the original of the 2016 Will was lost accidentally, the certified true copy of the 2016 Will would be the one which evidenced his late wishes. On the Deceased’s specific instructions, Mr Anthony Leung arranged for the photocopy of the original of the 2016 Will and certified the copy in front of the Deceased, as the certified true copy of the 2016 Will. The Deceased requested the 2016 Certified Copy Will be put in a sealed envelope. Mr Anthony Leung confirmed that the signature of the certification clause of the 2016 Certified Copy Will was his and he certified in front of the Deceased immediately after his execution of the 2016 Will.

49.  There can be no dispute that the Deceased has the relevant testamentary capacity to execute the 2016 Will. Mr Anthony Leung’s evidence shows that there was no sign of any illness, including mental illness, when the Deceased attended L&A’s office (or when he met Mr Anthony Leung and Mr Kwok at the ICC Restaurant in October 2015 for execution of the 2015 Will). Neither Mr Anthony Leung nor Mr Kwok was aware of anything unusual regarding the Deceased’s behaviour. The Deceased also conversed normally with all other attendees on both occasions.

50.  There is also no evidence to suggest that the 2016 Will is not the last will of the Deceased.

REVOCATION OF THE 2016 WILL

51.  As set out above, the Defendant’s main case is that as the original of the 2016 Will cannot be found in the Safe Deposit Box, the natural inference is that the Deceased destroyed the same. As such the 2016 Will was revoked.

52.  It was suggested by the Defendant that the Deceased revoked the 2016 Will because he wanted to distance himself from his god-sister Xu Peihua (“Xu”) and to protect his assets.

53.  The modes of revocation of will are codified in s.13(1) of the Wills Ordinance (Cap.30): -

“No will or part of a will shall be revoked otherwise than—

(a) by marriage as provided by section 14;

(b) by another valid will;

(c) by a written revocation executed in a manner in which the testator could validly execute a will; or

(d) by the burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”

54.  The testator’s destruction of the will with the intention of revoking it is one of the usual ways of revoking a will: s. 13(1)(d) of the he Wills Ordinance (Cap 30).

55.  In principle, a will that has been lost or accidentally destroyed, either during the testator’s lifetime or after his death, may still be admitted to probate if it can be shown that the will was duly executed, and what the contents of the will were: Morina v Scherbakova [2023] EWHC 3253 (Ch) at §263, citing Re Webb [1964] 1 WLR 509.

56.  Where a will is last traced into the testator’s possession and is then not found after the testator’s death, after all reasonable search and inquiry, a presumption arises that the testator has destroyed it with the intention of revoking it. The burden of proving that the will was not destroyed with the intention of revocation is then on the party who seeks to rely on its contents: Theobald on Wills at §7-058.

57.  In other words, where a will was in the testator’s custody and cannot be found at his death, there is a rebuttable presumption that the testator destroyed the will with intention to revoke it. In Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115 at §21, Lam J (as he then was) said: -

“Whether a will has been revoked is a question of fact. Usually, if it is established that a deceased had made a will, the party who seeks to contend that he died intestate bears the burden of showing that the will had been revoked. However, in cases where a will was in the custody of a testator and it cannot be found at his death, there is a rebuttable presumption that the testator himself destroyed the will for the purpose of revoking it. That presumption can be rebutted, and the strength of the presumption varies according to the circumstances of the case. Amongst other things, the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death and the contents of the will are relevant matters to be taken into account. Since the ultimate question is whether the will has been revoked, the court must also examine whether the testator had any cause to revoke the will and other factors supporting as well as those pointing against a case of revocation. The burden is on the party propounding the will to prove that the will had not been revoked.” (Emphasis added)

58.  Where the repositories of the deceased were clearly accessible to and were proved to have been investigated first by the only person interested in destroying the will, the court has refused to presume that the missing will was destroyed by the testator unless satisfied that it was not in existence at his death: Theobald on Wills at §7-058.

59.  Further, the strength of the presumption varies according to the character of the custody that the deceased had over the will: Welch v Phillips [1836] 12 ER 828 at p. 302.

60.  The conventional approach of how the court should deal with the presumption has been succinctly summarized in Jones v Tracey [2023] EWHC 2242 (Ch) at §19:-

“(2) The presumption may be rebutted. It has been suggested in one case that the evidence needs to be “clear and satisfactory”, but I do not consider that this gloss adds anything to the usual requirement that the court must be satisfied on the balance of probability by the evidence before it. Either the evidence taken as a whole achieves the outcome of rebutting the presumption or it does not. Obviously, evidence that is unclear or unsatisfactory, or both, is unlikely to satisfy the court.

(3) Both Williams on Wills and Williams, Mortimer & Sunnucks provide examples of the type of evidence the court may take into account. These examples are only of passing interest because each case necessarily involves a careful review of the circumstances in which the last will, and possibly earlier wills, were made, the will-maker's intentions and relevant events through the will-maker's life up to the will-maker's death. The character of the will-maker and their lifestyle may also be relevant. It is unlikely that the facts of an earlier case will precisely map onto the case under consideration.

(4) The burden of proof lies upon the party seeking to propound the will.

(5) Finally (and I would suggest curiously) the court is required to consider what weight is to be given to the presumption.”

61.  Mr Li SC for the Plaintiff submitted that the conventional approach under Welch v Phillips has been criticized. The modern approach is that the court should consider all the relevant evidence available and drawing such inferences from the totality of that material, it has to come to a conclusion whether those propounding the will have discharged the burden of establishing that the will in question was lost rather than destroyed with the intention of revocation: Gill v Woodall [2010] EWCA Civ 1430 at §22 (per Lord Neuberger MR) and Re Estate of Whelen (Deceased) [2015] EWHC 3301 (Ch) at §145.

ANALYSIS AND DETERMINATION

62.  I agree the court should consider all the relevant evidence available and draw such inferences from the totality of such material. It has to come to a conclusion whether those propounding the will have discharged the burden of establishing that the will in question was lost rather than destroyed with the intention of revocation.

63.  Further, for the Defendant to invoke the presumption of revocation, the Defendant must have conducted all reasonable search and inquiry of the subject will. (See: Theobald on Will at §7-058.)

64.  First, I agree that the Defendant has failed to plead or allege by affirmation evidence that he has conducted a careful exercise to search for the 2016 Will.

65.  Secondly, as a matter of evidence, the Defendant did not say whether he has done any search for the 2016 Will. He has never deposed to any effort to look for the original of the 2016 Will. This is difficult to fathom given that a copy of the 2016 Will was given to the Defendant in 2017. Accordingly, I am of the view that the Defendant cannot invoke the presumption that the Deceased has revoked the 2016 Will.

66.  Thirdly, there is no rebuttal from the Defendant that the Safe Deposit Box as a matter of fact could be opened without the key possessed by the Plaintiff. The 2016 Will could simply have been misplaced.

67.  Fourthly, I find it incredible that had the Deceased decided to revoke the 2016 Will, he would not have informed the Plaintiff. It was the Deceased who passed the Sealed Envelope to the Plaintiff. Had the 2016 Will be revoked, there is no credible reason as to why the Deceased would like to keep that as a secret from the Plaintiff. This is particularly so given that it was the Plaintiff who took care of the Deceased until his final days.

68.  Fifthly, on the Defendant’s case, in all likelihood, the Deceased must have told the Defendant and/or Madam Zheng about the revocation of the 2016 Will prior to his death. I find it hard to believe that the Deceased would have told the Plaintiff the execution of the 2016 Will, but not to Madam Zheng and/or the Defendant. If so, there are again no credible explanation for the stone silence on the part of the Defendant when a certified copy of the 2016 Will was produced to him in 2017. His immediate reaction would have been that the Deceased had informed him that the 2016 Will had been revoked.

69.  Sixthly, I agree that the time gap between the Deceased’s execution of the 2016 Will on 12 January 2016 and his death on 18 August 2016 was a very short one, i.e. less than 8 months. There is overwhelming evidence suggesting that the Deceased’s testamentary intention remained unchanged notwithstanding the Defendant’s case about the implications arising from Xu’s arrest in the Mainland, China.

(1)  Mr Li SC for the Plaintiff is correct that the litigation between the Plaintiff and the Defendant has lasted for more than 8 years (either in Hong Kong or in the Mainland, China). It is only in the Defendant’s affirmation that for the first time, he mentioned the Xu saga which was that Xu visited the Deceased twice in 2016 which caused the Deceased to instruct him to transfer the shares of the Company and the Deceased revoking the 2016 Will. The Defendant never mentioned the above incidents in any documents, including the pleadings, affirmation evidence, statements, WeChat messages, etc.

(2)  Since 26 August 2016 (after the funeral arrangement of the Deceased), the Plaintiff started to request the Defendant to produce the original of the 2016 Will or to open the Safe Deposit Box repeatedly. However, the Defendant had never mentioned that the Deceased had instructed him to transfer the shares of the Company so much so that the 2016 Will (which the Defendant knew of the contents) would be irrelevant.

(3)  The Plaintiff had instructed his solicitors to send a letter dated 2 February 2018 to the Defendant to request him to “explain as to when and for what consideration the Deceased’s shares came to be sold purportedly and the circumstances and reason for the sale”. The Defendant had duly received the said letter and made a reply letter dated 8 February 2018. However, the incidents relating to Xu as a key reason to transfer the subject shares were never mentioned.

(4)  The same applies to the Plaintiff’s requests for explanation for the transfer of the Deceased shares to a company, namely, THINK27 Limited.

(5)  It is only after the Plaintiff’s present application for summary judgment that the Defendant claims for the first time that the shares transfer was made pursuant to the Deceased’s instructions. Mr Li SC is right in submitting that even then, not a word was mentioned about Xu and the reasons for such transfer.

70.  I am of the view that if the Deceased had specifically told the Defendant the reasons of the transfer, then there are no credible explanations as to why the same were not related to the Plaintiff when a certified copy of the 2016 Will was produced to him in 2017. His immediate reaction would be that the 2016 Will was not capable of being performed because some shares had been transferred out pursuant to the Deceased’s instructions.

71.  If, on the other hand, the Deceased had not told the Defendant the specific reasons for the transfer, then the Xu incident is the Defendant’s own speculation.

72.  Mr Li SC is also correct that the Defendant has failed to produce any evidence to support a valid share transfer including evidence of consideration provided by THINK27 Limited. If THINK 27 Limited is a nominee for the Deceased and thus the estate of the Deceased, then there is no need to destroy the 2016 Will. There is also no suggestion that the said shares were simply gifted to the Defendant. If so, the Defendant would have said so at the first available opportunity.

73.  Seventhly, I agree that the Deceased was a cautious person. He envisaged the possibility that the original of the 2016 Will might be lost accidentally. This was in fact the very reason why the Deceased requested a certified copy to evidence his late wishes. I find it hard and difficult to believe that the Deceased would have simply destroyed the 2016 Will and allowed his estate to be distributed on an intestate basis.

74.  It is also inherently improbable that he would have left his young son, Chi Yui, unprovided for. I accept the Plaintiff’s evidence that when the Deceased was on his deathbed, he was deeply concerned with Chi Yui’s interest. Two days before the Deceased passed away, he even bought and handed over his last birthday gift to Chi Yui. The bequests under the 2016 Will are reasonable and understandable. The Deceased had two sons and accordingly he made equal distribution to them.

75.  Eighthly, it is also the evidence of Mr Larry Lo, a close friend of the Deceased that the Deceased had repeated his testamentary intentions of making provisions for the Defendant and Chi Yui all the times until his death and had never mentioned any intention to revoke the 2016 Will: -

(1)  Mr Larry Lo is a good friend of the Deceased and had maintained close contact with the Deceased since 2005. Mr Larry Lo used to be the architect for the Deceased’s Zhuhai development projects.

(2)  The Deceased reposed immense trust upon Mr Larry Lo.

(3)  In 2015, the Deceased told Mr Larry Lo that he wished to make a will in Hong Kong, and Mr Larry Lo referred the Deceased to Mr Anthony Leung.

(4)  The Deceased told Mr Larry Lo that his estate should go to Chi Yui and the Defendant in equal shares. The Deceased’s main asset was properties in Zhuhai, such that the rental income therefrom could provide for the daily living of his two sons. This makes perfect sense to me.

(5)  Mr Larry Lo’s role in providing support for the Deceased in respect of the Deceased’s Hong Kong affairs, especially the making of the will, is further seen in the amendment of the 2015 Will. Mr Larry Lo arranged for the amendment.

(6)  In the subsequent meeting between the Deceased and Mr Larry Lo, the Deceased mentioned that his estate arrangement was completed and repeated that his estate would go to his two sons in equal shares, but just that Chi Yui’s share would be inherited after he becomes an adult, until which the Plaintiff would properly handle the same for Chi Yui.

(7)  The Deceased had never mentioned to Mr Larry Lo that he had revoked the 2016 Will or he had transferred away his shares in the subject company at any time and as late as a few days before his death when Mr Larry Lo visited him.

76.  Ninthly, I also agree that there is no evidence that the Deceased used to handle documents in an orderly manner such as having a system to keep documents. Rather, according to the Defendant, the documents stored at the Safety Deposit Box were array of different documents. The Deceased did not have a systematic storage of documents. This makes the duty to make proper searches and inquiries even more important which, on the evidence, was not properly carried out. It might well be that the original of the 2016 Will had just been lost or mislaid accidentally or by neglect by the Deceased without any intention of revocation.

77.  Mr Dawes SC for the Defendant referred to a document inside the Safe Deposit Box, apparently prepared by the Deceased, setting out his wish regarding his funeral arrangements and the fact that during the Deceased’s lifetime, he had already gifted assets of considerable value to the Plaintiff and Chi Yui. However, I do not see any logical link between his wish regarding his funeral arrangements and the validity of the 2016 Will. The same applies to the fact that there were inter vivo gifts to the Plaintiff, Chi Yui and the Defendant.

78.  As to the fact that the Defendant was not informed of the 2016 Will, that is irrelevant. On the Defendant’s case, he was also not informed of the 2015 Will.

79.  Mr Dawes SC referred to the Plaintiff’s pleadings and submitted that it is the Plaintiff’s case that the Safe Deposit Box could only be opened with the key possessed by the Plaintiff and the passcode possessed by the Defendant. It is what the Deceased told the Plaintiff and that was the arrangement. However, the fact is that it is not challenged that the Safe Deposit could be opened without the Plaintiff’s key.

80.  For all the reasons stated above, I do not find, on a balance of probabilities, that the 2016 Will had been revoked.

81.  Finally, the Defendant took the point that the Summons should be dismissed because Chi Yui, who would be affected by this action, has not been joined as a party. This means that the action was improperly constituted, and the Statement of Claim is incomplete and defective. However, Mr Dawes SC very fairly and sensibly agreed that upon an undertaking to join Chi Yui as a party to these proceedings, there is nothing in this point.

DISPOSITION

82.  For all the reasons stated above, I make an order in term of the Summons and appoint the Plaintiff as the sole executrix of the estate of the Deceased. I find the Plaintiff to be the proper person to be appointed as she has worked for the Deceased’s business in the past and is familiar with the assets of the Deceased. The Defendant has not offered himself to be an executor of the Estate.

83.  I am of the view that it is in the best interest of the Estate that proper administration of the Hong Kong assets of the Estate should take place as soon as possible. The Deceased has died for some 9 years.

84.  As far as costs is concerned, I make a costs order nisi that the costs of and occasioned by the Summons be paid by the Defendant to the Plaintiff, to be taxed on a party to party basis, if the parties cannot reach an agreement on the quantum of costs. This costs order nisi will be made absolute within 14 days from the date of this decision if not application is taken out to vary the same.

85.  I also make an order in terms of the Amendment Summons with costs to the Plaintiff.

86.  Finally, it remains for me to thank counsel for their helpful assistance.