WONG JOANING OLIVER v. MICHAEL WONG AND OTHERS

HCAP 14/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 14 OF 2006

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IN THE ESTATE OF LAM CHUNG FONG (林寵芳), DECEASED

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J U D G M E N T

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1.  This is a probate action.  The plaintiff seeks to propound a will made by the deceased in 1983.  Only a copy of the will is available for trial.  The original will is with the 5^th defendant’s solicitors in Australia, despite an earlier court order requiring the 5^th defendant to file her affidavit of testamentary scrip and to lodge the original will in the Registry.  Thus far, she has not complied with the Court’s order.  So pursuant to the provisions made in the earlier order, the copy will which has been lodged with the court by the plaintiff is used for the purposes of the trial and for the purposes of probate if probate is granted of the 1983 will. 

2.  With the exception of the 3^rd and 5^th defendants, none of the defendants and the two persons who have been given notice of the proceedings has filed a notice of intention to defend the present proceedings. 

3.  So far as the 5^th defendant is concerned, she has given notice of intention to defend the proceedings but, despite an unless order by the Registrar requiring her to file her defence, she has failed to do so.  In fact, very recently, she has, through her solicitors, written to the Court to say that she is no longer opposing the plaintiff’s claim.

4.  The 3^rd defendant, who has also given notice of intention to defend, has likewise failed to file a defence.  She has also through solicitors informed the Court that she no longer defends the claim.

5.  In view of those circumstances, the Court has, on an earlier occasion, given a direction that the case be tried on affidavit evidence only, and affidavit evidence has indeed been filed. 

6.  Based on the evidence so filed, it is plain to the Court that the 1983 will executed by the deceased in Hong Kong in a solicitors’ firm has been duly executed by the deceased.  The two attesting witnesses, one of whom was the solicitor who prepared the will for the deceased and the other being the solicitor’s clerk who had interpreted the contents of the will to the deceased, have each made an affidavit/affirmation deposing to the attestation (and interpretation) of the will.  So based on the evidence from the attesting witnesses and the interpreter, I have no problem with the due execution of the will.

7.  The testamentary capacity of the deceased back in 1983 when she made the will in Hong Kong is not in question.  Knowledge and approval of the will is not in issue either, given proof of due execution and given that testamentary capacity is not in issue.  Regarding the deceased’s understanding of the English language (given that the 1983 will is written in English), as I say, the will, according to the evidence, has been duly interpreted by the solicitor’s clerk to the deceased.  So, again, that is not a question.  As I say, there is really no opposition to the 1983 will, so subject to one matter that I will immediately turn to, the plaintiff has made out his case for propounding the 1983 will.

8.  The only complication in the present case is the presence of a will, or purported will, dated 23 November 2003, apparently made in Australia when the deceased was in her 80s. 

9.  The first thing to note is that nobody has come forward in this Court to propound the will.  At one stage, the executor named in that Australian will, ie the 1st defendant, sought to propound the will in Australia, but upon that effort being opposed by the 5^th defendant in Australia, the 1st defendant no longer sought to propound the will there.  Neither the 1^st nor the 5^th defendant have taken any steps in the local proceedings to propound or oppose the Australian will.  That will, or purported will, names various beneficiaries.  They are either parties to or persons who have been given notice of these proceedings but none of them has seen fit to come forward to defend the Australian will. 

10.  The question of due execution of the Australian will is problematic to say the least.  I have very clear and unopposed evidence from a handwriting and document examination expert, Dr Steven Strach, to the effect that the signature on that purported Australian will, purporting to be the signature of the deceased, in fact is not her signature.  The same thing has been said in relation to the signature of a purported attesting witness, Chan Fong, who has, according to the evidence, passed away.  The other attesting witness, according to the evidence, cannot be located. 

11.  So far as the deceased’s signature, or purported signature, on the Australian will is concerned, according to the expert, there are dynamic differences in terms of hesitant writing and lack of fluency, as well as structural differences which suggest strongly that the signature in question is a simulated signature.  According to the expert, there is no evidence that the writer of the specimen signatures, which are undisputed genuine signatures of the deceased, wrote the questioned signature and, according to the expert, it is “highly unlikely” that the signature in question was written by the person who wrote the specimen signatures.

12.  As regards the purported signature of Chan Fong, according to the expert, there are structural differences which suggest strongly that the signature in question is a simulated signature.  Again, there is no evidence, according to the expert, that the writer of the specimen signatures wrote the questioned signature and, according to the expert, again, it is “unlikely” that the writer of the specimen signatures wrote the questioned signature of Chan Fong.

13.  The expert has also made a number of supplementary observations and conclusions regarding the purported Australian will, based on document examination.  In short, there are numerous and serious doubts regarding due execution of the Australian will.  Furthermore, unlike the Hong Kong will, on the face of the will itself, there is no evidence of its contents having first been interpreted to the deceased before execution.  (The Australian will, like the Hong Kong will, is written in English.)  Nor is there any other evidence before the Court regarding any interpretation of the contents of the Australian will to the deceased prior to execution.  For that reason, the Australian will is also problematic in terms of knowledge and approval.

14.  Having considered the evidence as a whole and bearing in mind the stark fact that nobody interested in the Australian will has come forward in this Court to propound it, I am not satisfied that the purported Australian will is in fact a will made by the deceased with full knowledge and approval.

15.  In those circumstances, there is no question of pronouncing for the Australian will, nor would it be right to allow that purported will to stand in the way of the earlier Hong Kong will.  In other words, I am satisfied that the Court should pronounce for the earlier 1983 will. 

16.  As I say, the original will is not available so I will make an order admitting the copy Hong Kong will for probate.  Probate will be granted to the plaintiff as the proving executor named in the will.  The name of the executor to be used in the grant should be in accordance with the affidavit sworn by the plaintiff, a copy of which appears at pages 624 to 626 of the trial bundle.

17.  I should add that the expert relied on by the plaintiff is, as I say, a handwriting and document examination expert.  He has a very impressive resume and has been accepted as an expert before, so there is no question of the Court not accepting him as an expert in this case.

[Submission on costs]

18.  So far as the costs of the probate action is concerned, I do not think the plaintiff needs any costs order from the Court.  The plaintiff, as an executor proving successfully a will in solemn form, is entitled to have his entire costs paid out of the estate without an order of court: Tristram & Coote’s Probate Practice (29^th ed), para 40.05.  So on that basis, I make no order as to costs. 

19.  I should, of course, add that the plaintiff is not asking for costs against any of the defendants, so there is no question of making any adverse costs order against anyone.