RE YAU, SUNG KEUNG late of Unit A, Ground Floor, 34A Tseng Lam Shue Village, Sai Kung, New Territories, Married Man, deceased (“the Deceased”)

HCAG 13744/2019

[2022] HKCFI 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 13744 OF 2019

_______________

_______________

_______________

DECISION

_______________

Introduction

1.  The late Mr Yau (“the Deceased”) passed away in January 2017.  He was survived by his mother Madam Shan (“the Mother”), his wife Madam Lau (“the Wife”) and their only daughter Yau Yik Chun (“the Daughter”). 

2.  By his last will dated 11 August 2016 (“the Will”), the Deceased appointed his younger sister Madam Yau Mui Yin (“the Executrix”) as the sole executrix and trustee.  

3.  The Executrix made an ex parte application for rectification of the Will (“the Application”) pursuant to section 23A of the Will Ordinance, Cap 30 (“the WO”) in August 2019.  By the order of Master J Wong dated 21 November 2019 (“the Rectification Order”), the Application was granted. 

4.  By summons dated 24 February 2021, the Daughter applies to set aside the Rectification Order.  The Wife, legally aided, acts as the next friend of the Daughter, now aged 13, in this application.  The Wife and the Deceased had lived apart for many years though they were not divorced.  

5.  Under the Will, the Mother and the Daughter are the only beneficiaries and no provision is made for the Wife.  As a result, the Wife has commenced proceedings pursuant to the Inheritance (Provision for Family Dependants) Ordinance, Cap 481 under FCMP188/2017 (“the Proceedings”).  In the circumstances, the Wife’s role in the present application gives rise to a controversy.  

The Rectifications

6.  The major asset of the Deceased is a 3-story village house registered in his sole name (“the Building”) since or about 1992.  In fact, the Building is the only landed property of the Deceased.  The present debate revolves around the specific legacies to the Mother and the Daughter in regard to the Building under the Will. 

7.  As evidenced by some photos and sketch floor plans, the Building has two units on each of its ground, first and second floors vertically identified as Block A and Block B.  There are altogether six units.  There is an internal staircase on the ground floor leading to the first and second floors and the roof. 

8.  All the units are for residential purposes and the four units on the first and second floors identified as Units 1A, 1B, 2A and 2B were rented out.  In Form No N4.1 (Schedule of Assets and Liabilities) filed by the Executrix, the Deceased’s creditors include four individuals to whom rental deposit was refundable.  There is a mailbox hanging on the external wall of the ground floor of the Building for each of these units on the upper floors marked respectively Units 1A, 1B, 2A and 2B. 

9.  According to the land search record of the Building, the address of the Building is Lot No 910 in DD 226 Sai Kung, New Territories (“the Official Address”).  There is no mention of Block A and Block B.  

10.  According to the Street Index search from the Land Registry website, the lot description for the address “No 34A, Tseng Lan Shue, Sai Kung” is “Lot No 910 in DD 226”, i.e. the Official Address.  

11.  The address of the Building appearing in the demand notes for rates issued by the Rating and Valuation Department for Quarter January to March 2019 (“the Demand Notes”) is G/F & Roof Block A-B, 34A Tseng Lan Shue Village, Sai Kung, New Territories (“the Rating Address”). 

12.  Under Clause 3 of the Will, the Deceased devised and bequeathed all those Ground Floor, First Floor, Second Floor and Roof of No 34A Tseng Lane Shue, Sai Kung, New Territories, Hong Kong erected on part of Lot 910 in Demarcation District 226 including all rents and profits deriving therefrom to the Mother. 

13.  Similarly, under Clause 4 of the Will, the Deceased devised and bequeathed all those Ground Floor, First Floor, Second Floor and Roof of No 34B Tseng Lane Shue, Sai Kung, New Territories, Hong Kong erected on part of Lot 910 in Demarcation District 226 including all rents and profits deriving therefrom to the Daughter.  In case the Daughter is still a minor, the Executrix shall hold the same for the Daughter’s use and benefit until she shall attain the age of 21 years as her guardian. 

14.  Pursuant to the Rectification Order, the subject matter of the legacy to the Mother in Clause 3 of the Will was rectified to be all that half share of the Building at the Official Address. 

15.  Likewise, the subject matter of the legacy to the Daughter in Clause 4 of the Will was rectified to be all that half share of the Building at the Official Address.  

16.  Moreover, by the Rectification Order, “Tseng Lane Shue” appearing in Clauses 3 and 4 was amended to be Tseng Lan Shue.  It was obviously an insignificant typographical error and no party takes issue with this particular rectification.  

The present application

17.  Mr Liu, for the Wife, advances three main grounds for the present application.  First, he submits that section 23A of the WO has no application at all.  Second, he submits that the rectifications differ materially and drastically from the intentions of the Deceased.  Lastly, Mr Liu argues that there was material non-disclosure.  

18.  Ms Lok, for the Executrix, indicates that the Executrix adopts a neutral stance in this matter.  Likewise, the Mother, represented by Mr Ip, takes the same position.  

Relevant legal principles

19.  I shall deal with the three grounds of the Wife in turn.  It is necessary to first remind myself of the applicable legal principles.  Ms Lok has helpfully referred to me the relevant authorities. 

20.  Section 23A of the WO provides,

(1)     If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence-

(a)     of a clerical error; or

(b)     of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

21.  This provision is exactly modelled on section 20(1) of the English Administration of Justice Act 1982 (c 53). In an oft-cited passage from Re Segelman Deceased [1996] Ch 171 at 180, Chadwick J explained the British counterpart in the following terms: 

“The sub-section the court to examine the three questions. First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either:

(a) a clerical error; or

(b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.”

22.  Chadwick J also said this,

“… although the standard of proof required in a claim for rectification made under section 29(1) of the Act of 1982 is that the court should be satisfied on the balance of probability, the probability that a will which the testator has executed in circumstances of some formality with flax his intentions is usually of such weight that convincing evidence to the contrary is necessary.”

23.  In Sprackling v Sprackling [2009] WTLR 897, Norris J, after citing the foregoing passage from Re Segelman Deceased, had this to say:

“This emphasises that speculation is no basis upon which to interfere with a formal expression of testamentary intentions. One must be confident that the will as expressed does not record the instructions given because of error or misunderstanding, confident in the sense of being satisfied on the balance of probabilities by evidence of a quality commensurate with the inherent probabilities of the case itself.”

24.  With these principles in mind, I turn to the three relevant questions, which effectively cover the first and second grounds of the Wife.  

Section 23A

25.  A solicitor named Mr Raymond Tse of Messrs. Raymond T L Tse & Co (“Mr Tse”) drafted the Will.  The Executrix introduced Mr Tse to the Deceased.  The Executrix relayed the instructions of the Deceased to Mr Tse for his preparation of the Will.  Prior to the meeting in his office on the day of the Deceased’s execution of the Will, Mr Tse had not talked with the Deceased personally. 

26.  The Executrix is, therefore, the only source of the evidence of the Deceased’s testamentary intentions whilst no evidence in this regard, oral or documentary, emanates from the Deceased. 

27.  The Executrix has made three affirmations and Mr Tse has also made one to justify the rectifications.  I have studied their evidence to ascertain the testamentary intentions of the Deceased. 

28.  At the ex parte stage, the Executrix’s evidence by way of her affirmation re-refiled on 20 November 2019 is that the Deceased’s wish was to give half block of the Building and its interest thereof to the Mother and half block of the Building and its interest thereof to the Daughter. 

29.  The Executrix also sent the Demand Notes bearing the Rating Address to Mr Tse for his preparation of the Will.  

30.  In her affirmation at §10, the Executrix went on to say this,

“Since there is no official address designated for the Building erected on the Lot from the Land Registry and the Building is not partitioned into 2 blocks, I verily believe that the Deceased’s intention was to vest the interest of all the units in Block A of the Building as stated in the demand notes for rates to our mother Shan Nang and the interest of all the units in Block B of the Building to Yau Yik Chun and the bequeath to Yau Yik Chun shall be held by me upon trust for her until she reaches the age of 21.”

31.  She also pointed out that there is no such address named “No 34B, Tseng Lan Shue, Sai Kung” as shown from the Street Index search on the Land Registry website.  The entire Building is erected on No 34A Tseng Lan Shue, Sai Kung and the reference to No 34B in Clause 4 of the Will is plainly a misnomer.   

32.  In his affirmation, Mr Tse first gave an account of the meeting with the Executrix in his office on 10 August 2016.  In the meeting, the Executrix gave Mr Tse her instructions for the preparation of the Will.  

33.  According to his evidence, Mr Tse was expressly instructed that there was one unit on each of the two sides of the Building, which the Executrix referred to as “34A” and “34B” of Tseng Lan Shue and the Deceased wanted to give all the units on one side of the Building and its rents derived therefrom to the Mother and the units on the other side and its rents derived therefrom to the Daughter which shall be held on trust by the Executrix until the Daughter reaches 21 years of age. 

34.  On 11 August 2016, the Executrix sent Mr Tse an email (“the 11/8 Email”) confirming the Deceased’s instructions that all 3 floors of “34A” were to be given to the Mother and all 3 floors of “34B” to the Daughter.  Pursuant to these instructions, Mr Tse drafted the Will. 

35.  Afterwards, the Deceased accompanied by the Executrix attended the office of Mr Tse to execute the Will on the same day.  Mr Tse read over and explained the terms of the Will to the Deceased.  The Deceased confirmed the contents of the Will and then signed the Will. 

36.  Upon being alert to the Official Address of the Building and the fact that there is no division of the units of the Building into two blocks, Mr Tse claimed that he verily believed that the Deceased’s intention was to make gifts of half of the interest of the Building to each of the Mother and the Daughter and so he supported the application for rectification. 

37.  In light of the challenge by the Wife, the Executrix in her 5^th Affirmation made it clear that she was genuinely mistaken that the official address of the units of Block A was No 34A Tseng Lan Shue, Sai Kung and the official address of the units of Block B was No 34B Tseng Lan Shue, Sai Kung given the information provided by the Deceased and the Demand Notes.  

38.  Shortly before the hearing, the Executrix sought leave to file another affirmation to explain the circumstances under which the Deceased told her his testamentary intentions. She claims at first the Deceased merely indicated that he wanted to give half of the Building to the Mother and half to the Daughter.  When asked by Mr Tse which side of the Building should be given to whom, the Executrix sought instructions from the Deceased and the Deceased replied that Block A would go to the Mother and Block B would go to the Daughter without giving any reasons.  The Executrix believes that it was a random assignment. 

39.  On this evidence, Ms Lok puts a lot of emphasis on the “half-half” arrangement intended by the Deceased and submits that the rectifications truly reflect this arrangement.  

40.  I am not convinced by this submission.  

41.  Throughout, the Deceased was well aware that the Building was physically divided into two parts known as Block A and Block B though the division was not legally completed.  The Deceased leased the four units on the upper floors with the designations of Blocks A and B.  The Deceased was demanded to pay rates on this basis too and rates were apportioned for those units.  

42.  Thus, in his reply to the Executrix’s request for confirmation, the Deceased made a clear and unequivocal indication to bequeath the Mother the part of the Building identified as Block A and the Daughter the other part of the Building identified as Block B.  Whether his decision was made justifiably or randomly is irrelevant.  These two blocks were clearly identifiable albeit not being part of the Official Address.  It does not seem to be the prime concern of the Deceased that each of the Mother and the Daughter should be bequeathed the entire beneficial interest of the Building in equal shares. 

43.  The Executrix did relay these intentions of the Deceased to Mr Tse, though in her 11/8 Email she made a misdescription of the two blocks.  Both Block A and Block B of the Building is erected on 34A Tseng Lan Shu, Sai Kung and there is in fact no 34B.  Mr Tse made the same mistake in the Will subsequently. 

44.  Having considered all the evidence in the round, I come to conclusion that the Deceased intended that the Building having been physically divided into two parts, the Mother should be bequeathed Block A and the Daughter should be bequeathed Block B despite the fact that there is no such division in the Official Address.  The Deceased clearly had in mind the division of Block A and Block B between the Mother and the Daughter. 

45.  Now I proceed to consider the second question, ie, whether the Will is so expressed that it fails to carry out those intentions. 

46.  There are two mistakes in the description of the subject matter of the specific legacy in Clause 3.  First, “Block A” was omitted.  Second, “Tseng Lane Shue” should read “Tseng Lan Shue”.

47.  Similarly, there are three mistakes in Clause 4.  “Block B” was omitted and “No 34B Tseng Lane Shue” should read “No 34A Tseng Lan Shue”. 

48.  I also note that the respectively addresses of the Deceased, the Mother and the Daughter were wrongly stated in the Will too. 

49.  With such fundamental mistakes, I can conclude that Clauses 3 and 4 of the Will failed to carry out the intentions of the Deceased accurately.  

50.  I then come to the third question as to whether this failure is in consequence of a clerical error.  Ms Lok pertinently refers to Marley v Rawlings [2015] AC 129.  In his speech agreed by Lord Clarke, Lord Sumption and Lord Carnwath, Lord Neuberger said this at §76, 

“For the present purposes, of course, “clerical error” is an expression which has to be interpreted in its context, and, in particular on the assumption that section 20 is intended to represent a rational and coherent basis for rectifying wills. While I appreciate that there is an argument fro saying that it does nothing to discourage carelessness, it seems to me that the expression “clerical error” in section 20(1)(a) should be given a wide, rather than a narrow, meaning.”

51.  Given a wide meaning, clerical error under section 23A(1)(a) of the WO should cover the failure of Mr Tse, the drafter, to ascertain the proper description of the specific legacies in my judgment.   

52.  In the premises, the Executrix has made out a case for rectification.  I reject the objection of the Wife that the Application did not fall within the ambit of section 23A of the WO. 

53.  However, I cannot agree that the Will as rectified truly carries out the intentions of the Deceased.  In bequeathing Block A and Block B to the Mother and the Daughter respectively, the Deceased might wish to ensure equality and make such a “half-half” disposition.  It does not follow that he intended that each of the Mother and the Daughter would have half share of the Building, nevertheless.   

54.  Given my finding of the intentions of the Deceased, I accept Mr Liu’s objection that the rectifications is actually tantamount to a rewriting of the Will.  They cannot be allowed to stand and the Rectification Order must be set aside. 

Material non-disclosure

55.  Having come to this conclusion, I do not need to deal with the allegation of material non-disclosures strictly speaking.  For completeness, I would briefly explain my view on this allegation. 

56.  Mr Liu submits that the Executrix made the Application under the pretence that all the beneficiaries under the Will consented to the Application and dressed it up as an unopposed application but it fact she had not sought their consent beforehand.  

57.  Practice Directions 20.2 provides that an application for rectification of a will, if unopposed, shall be made by way of an ex-parte originating summons returnable before a master supported by an affidavit to which any comments in writing by any person having an interest under the will whose interest might be prejudiced by the rectification applied for must be exhibited. 

58.  In Re the Estate of Ho Nai Chew [2010] 3 HKLRD 403 at §21, Johnson Lam J (as he then was) referred to the English Non-contentious Probate Rules Rule 55 and agreed that if an application for rectification is opposed, it should either be commenced by writ, originating summons or a probate counterclaim.  

59.  Mr Liu complains that the ex parte master was misled to believe that the Application was unopposed and he would not normally query whether the beneficiaries had consented to the application.  

60.  The Mother says nothing about this complaint.  Nor did she ever indicate her disagreement or dissatisfaction with the Application. 

61.  First of all, I am unable to accept the submission of Mr Liu that the ex parte master invariably assumed that the beneficiaries agreed to the application. It is expressly provided in the same provision in the Practice Directions that the master may raise all necessary requisitions and give directions including the giving of notice to every person having an interest under the will. 

62.  Further, the Executrix explained in her affirmation why she believed that it was unnecessary to involve the Mother and the Daughter in the Application.  She also pointed out that no requisitions had ever been made about any notice given to them or the Wife.  To save costs and to avoid delay, she made the Application on an ex parte basis. 

63.  I accept her explanation.  I also note that the Daughter was only 12 years old when the Application was made and she could not be expected to express any meaningful view on the same.  It was not unreasonable for the Executrix to assume that the Application was unopposed and hence opted to make the Application on an ex parte basis.   

64.  On the other hand, I agree with Mr Liu that the Executrix did not comply with the Practice Directions in that she failed to exhibit to her supporting affirmation the written comments of the Mother and the Daughter.  Such a failure, however, led to little consequences and I am prepared to waive this irregularity in the particular circumstances of the present case. 

65.  I, thus, find no substance in this complaint and I refuse to set aside the Rectification Order on this ground. 

Conclusion and order

66.  For the reasons given above, I grant the application of the Wife.  The Rectification Order cannot stand and must be set aside.  In light of my findings, the Executrix may consider making another application to rectify the Will to deal with the clear errors and I do not think any valid objection can be made to such an application. 

67.  This should be a straightforward application on the part of the Wife and due to her non-involvement in the preparation of the Will, her evidence is of little relevance.  Unfortunately, this matter has turned into a hostile litigation, sparked off by the affidavit evidence of the Wife containing serious allegations against the Executrix. However disappointed and frustrated the Wife may be with the Will, this is totally uncalled for.   

68.  The Executrix and the Mother came back with some allegations against the Wife and challenges to her capacity to act for the Daughter in view of her conflict of interest.  This is unfortunate.   

69.  I do not intend to deal with all the allegations made by the parties and they should not have been made in my view.  I have just focussed on the propriety of the Rectification Order. 

70.  I do not begin to doubt the bona fide of the Executrix in making the Application.  The Will is amenable to rectifications in view of the errors and the Application was reasonable.  In my view, the Executrix has no personal interest in this matter.   

71.  On the other hand, the role of the Wife is understandably controversial but the hard fact is that the rectifications do not reflect the intentions of the Deceased and should not be allowed to remain intact in the Will.  The present application is necessary whoever the maker is.

72.  All the parties should have taken a pragmatic approach to correct the mistakes in the Will and should not compound them.  They should not have allowed their judgment to be clouded by the Proceedings.  The size of the estate of the Deceased is rather modest and it is plainly in the interests of all the parties that unnecessary legal costs should be avoided.  

73.  I allow the present application of the Wife and I make a costs order nisi that the costs of all the parties including any costs reserved (with certificate for counsel) be paid out of the estate, to be taxed if not agreed.  The costs of the Wife should be taxed in accordance with the Legal Aid Regulations.  

74.  Lastly, I thank Ms Lok, Mr Ip and Mr Liu for their assistance rendered in this matter.