RE YIP HO

HCAG 566/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

NON-CONTENTIOUS APPLICATION FOR GRANT NO. 566 OF 2000

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J U D G M E N T

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Two appeals

1. These two appeals, taken out pursuant to rule 62(1) of the Non-Contentious Probate Rules (Cap. 10), have been heard by me together.

2. Both appeals concern requisitions originally raised by the Probate Registry. Eventually decisions were made by the Probate Master in respect of the requisitions, from which the appeals were launched.

HCAG 566/2000 - facts

3. In HCAG 566/2000 concerning the estate of Yip Ho, deceased, who died intestate on 17 June 1997, the deceased had a son (Kan Woon Cheung) who only survived her for a few months. He died on 6 November 1997.

4. In the amended administrator's affirmation made by the intended administrator (another son of the deceased) pursuant to rule 6(1) of the rules, he affirmed in paragraphs 1, 6 and 6A as follows:

"1. The abovenamed and described deceased late of the above address died at the Baptist Hospital, Kowloon, Hong Kong, on the 17th June 1997, intestate, leaving her surviving the following persons being the only persons entitled to share in her estate:

a. KAN MOON CHEUNG ALLAN（簡滿章）her natural and lawful son, now aged 69 years;

b. KAN BING CHEUNG LARRY（簡炳章）her natural and lawful son, now aged 66 years;

c. KAN KI CHEUNG JONATHAN（簡祺章）her natural and lawful son, now aged 59 years;

d. KAN WING CHEUNG KENNETH（簡榮章）her natural and lawful son, now aged 56 years;

e. KAN HUNG CHEUNG LARRY（簡鴻章）her natural and lawful son, now aged 49 years;

f. LEUNG KAN KING CHUN（梁簡琼珍）her natural and lawful daughter, now aged 62 years; and

g. KAN MAN PING WINNIE（簡曼萍）her natural and lawful daughter, now aged 53 years;

The deceased was domiciled in Hong Kong.

...

6. The said deceased died and leaving her surviving the following issue:

a. KAN MOON CHEUNG ALLAN（簡滿章）her natural and lawful son, now aged 69 years;

b. KAN BING CHEUNG LARRY（簡炳章）her natural and lawful son, now aged 66 years;

c. KAN KI CHEUNG JONATHAN（簡祺章）her natural and lawful son, now aged 59 years;

d. KAN WING CHEUNG KENNETH（簡榮章）her natural and lawful son, now aged 56 years;

e. KAN HUNG CHEUNG LARRY（簡鴻章）her natural and lawful son, now aged 49 years;

f. LEUNG KAN KING CHUN（梁簡琼珍）her natural and lawful daughter, now aged 62 years; and

g. KAN MAN PING WINNIE（簡曼萍）her natural and lawful daughter, now aged 53 years;

The said deceased had no other lawful children or issue either surviving or predeceasing her than the said Kan Moon Cheung Allan, Kan Bing Cheung Larry, Kan Ki Cheung Jonathan, Kan Wing Cheung Kenneth, Kan Hung Cheung, Leung Kan King Chun, Kan Man Ping Winnie and the late said Kan Woon Cheung. The aforesaid issues were begotten by the said deceased to the said Kan Shing (or Sing) Ho alias Kan Yik (or Yick) Wan.

6A. The deceased's natural and lawful son KAN WOON CHEUNG（簡煥章）died on 6th day of November 1997 at the age of 69 years. A certified true copy death certificate of the said Kan Woon Cheung is filed herein."

5. The subject requisition, which has been confirmed by the Probate Master in his decision, requires the Applicant to amend paragraphs 1 and 6 by including Kan Woon Cheung as one who survived the deceased (albeit by a few months) and was thus entitled to a share in her estate (in paragraph 1) and as one of the deceased's surviving issue (in paragraph 6), and reaffirm the affirmation in question.

HCAG 24/2004 - facts

6. In HCAG 24/2004 involving the estate of Chan Hung Yan, deceased, who passed away on 15 January 2003, the Applicant (widow of the deceased) affirmed in her administratrix's affirmation that she and the deceased were married to each other, that she was the "lawful widow" of the deceased, and she and the deceased had four "lawful" sons, who were aged between 40 and 70 as of the date of affirmation (4 December 2003). According to the certificate of marriage between the Applicant and the deceased, they were married on 20 October 1986. The certificate describes them as respectively a bachelor and a spinster prior to their marriage.

7. The subject requisition in essence queries the description of the four children as the "lawful" sons of the deceased, given that they were obviously born well before the registry marriage of the deceased and the Applicant. In the decision of the Probate Master, it was "suggested" to the Applicant that:

"4. (a) the description of Mr. Chan Chi Keung, Mr. Chan Chi Chung, Mr. Chan Chi Ming and Mr. Chan Chi Kin be amended as "lawful legitimated sons". The suggestion that the deceased and the applicant having undergone customary marriage is understandable but appears not to be in conformity with their declaration of their condition/status on 20 October 1986, namely bachelor and spinster (see document (2)); requisition no.1 (ii) should be further answered by the applicant; OR

(b) paragraph 2 of (1) be supplemented by: "...... The said deceased and the said Chan Sheet Ping married to each other [date] at [place] in accordance with Chinese customs and rites. On 20 October 1986, for the avoidance of doubt, they went to the Marriage Registry in Hong Kong to register or confirm their marriage. They described themselves as bachelor and spinster at the Marriage Certificate simply because they did not know the importance.""

8. Furthermore, the Probate Master directed thus:

"6. Without creating a precedent, 4(a) and (b) above may be confirmed by the handling solicitor instead of amending [the affirmation] and [having] it re-affirmed by the applicant."

Probate jurisdiction of the High Court

9. Both appeals touch on the administrator's oath or affirmation and the Registrar's power to raise requisitions.

10. The High Court's jurisdiction in matters relating to probate and administration of deceaseds' estates, including its power to grant probates of wills and letters of administration to the estates of deceased persons and to alter or revoke such grants, is derived from section 3 of the Probate and Administration Ordinance (Cap. 10). The jurisdiction of the Registrar (whose function may be discharged by a master) to make, amend or reseal in the name and under the seal of the High Court a grant of probate or administration is based on section 5(1) of the Ordinance. In so doing, the Registrar may exercise all such powers as are ancillary to those matters that he has jurisdiction to deal with, which the High Court or a judge of that court may exercise in like circumstances: section 5(2). However, nothing in section 5 shall limit or prevent the exercise by a judge of the High Court of any jurisdiction conferred upon the Registrar by section 5.

11. Furthermore, section 6 of the Ordinance essentially restricts the Registrar's jurisdiction in probate and administration matters to non-contentious ones.

12. Section 72(1) of the Ordinance provides for the making of probate rules and orders:

"for regulating the practice and procedure of the court and the Registry with respect to non-contentious or common form probate business and generally for the better carrying out of the provisions of [the] ordinance".

13. Furthermore, section 72(2) provides that in all such business in respect of which no provision is made by probate rules and orders, the practice and procedure for the time being in force in the Probate Registry in England shall be deemed to be in force in the court and the Registry.

14. Pursuant to section 72(1), the Non-Contentious Probate Rules have been made. Because of section 72(2), the English probate practice and procedure are from time to time referred to or relied on by the court and the Registry in Hong Kong. Tristram & Coote's Probate Practice (now in its 29th edition) is, by reason of its authority on the English probate practice and procedure, widely used locally by the court and the Registry, as well as the profession.

Administrator's oath or affirmation

15. Rule 6 of the Non-Contentious Probate Rules sets out the requirement for the making and filing of an administrator's oath or affirmation:

"6. Oath in support of grant

(1) Every application for a grant shall be supported by an oath in the specified form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Registrar may require. (L.N. 33 of 1992)

(2) On an application for a grant of administration the oath shall state whether, and if so, in what manner, persons having a prior right to a grant in accordance with the provisions contained in rule 21 have been cleared off, and whether any minority of life interest arises under the will or intestacy.

(3) Where the deceased died domiciled outside Hong Kong, the oath shall state where the deceased died domiciled.

(4) If the oath states where the deceased died domiciled (whether in or outside Hong Kong) a statement as to the country in which he died domiciled may be included in the grant."

16. Rule 2A deals with the forms to be used in connection with the rules:

"2A. Forms

(1) The Registrar may by general notice published in the Gazette specify the forms for use in connection with these rules.

(2) The specified form shall be adhered to with such variations or additions as circumstances may require."

17. Pursuant to rule 2A(1), the Registrar has specified two standard forms of affirmation or oath by administrator (Form 1 and Form 1A). For all practical purposes in this appeal, the two forms are identical.

18. Paragraphs 1 and 6 of the standard forms read as follows:

"1. The abovenamed and described deceased late of the above address died at ................(place of death) ..................... on the ................. day of ...................., 20........., intestate, *[a bachelor] [spinster] [widower] [widow]*[without issue] leaving *him/her surviving the following persons being the only persons entitled *to/to share in *his/her estate -

(Their names, relations and ages)

.......................................................

.......................................................

The deceased was domiciled in ......................................................

...

6. The said ....................... (name) ..................... died *[a bachelor without issue] [a spinster without issue or children] [and leaving *him/her surviving the following issue-

(Their names, relations and ages)

.................... A.B. ......................

.................... C.D. ......................]

The said .................... (name) ......................... had no other lawful children or issue either surviving or predeceasing *him/her than the said ............... A.B. ............... and ............... C.D. ................"

19. As regards the raising of requisitions, rule 5(1) reads as follows:

"5. Duty of Registrar on receiving application for grant

(1) The Registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction."

HCAG 566/2000 - arguments

20. Returning to these two appeals, in HCAG 566/2000, the Probate Master in his decision upholding the original requisition raised by the Registry, insisted that paragraphs 1 and 6 of the administrator's affirmation be amended, in accordance with the standard wording of paragraphs 1 and 6 in the form, by including the deceased son (Kan Woon Cheung) in the two paragraphs.

21. Mr Lau, a senior partner of the solicitors' firm representing the Applicant in the probate matter and a highly experienced probate practitioner in Hong Kong, argued at the appeal that the requirement to so amend paragraphs 1 and 6 is wholly unnecessary, given that the situation relating to the deceased son who had survived the deceased by several months has already been set out in paragraph 6A in the amended affirmation of his client, which (paragraph 6A) has been tailor-made and added by him in the affirmation to cater for the peculiar situation.

22. Mr Lau also argued (although perhaps not with as much confidence as he had with his first argument), by way of a fallback position, that paragraphs 1 and 6 of the standard forms are "ultra virus" in that they relate to matters irrelevant to the Registrar's jurisdiction and powers to make a grant, and thus his power to specify the forms to be used in connection with an application for such a grant.

23. I will deal with the two arguments in turn.

Mandatory adherence to the specified forms

24. As to the first, in my judgment, the matter is governed by the Non-Contentious Probate Rules, which have been made pursuant to powers given to the Chief Justice under section 72(1) of the Ordinance. The rules have statutory force and must be complied with as such.

25. Rule 6(1), in my judgment, is a mandatory provision. It requires that "every application for a grant shall be supported by an oath in the specified form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant". The requirement of an administrator's oath or affirmation is mandatory, so is the requirement that the oath or affirmation be in the specified form.

26. Rule 2A(1) gives the Registrar the power to specify the forms to be used in connection with the rules, and that must include the specified form of the administrator's oath or affirmation referred to in rule 6(1). Rule 2A(2) goes on to require mandatory adherence to these specified forms by saying that the specified forms "shall be adhered to." Variations of or additions to these specified forms are only permitted, in my judgment, when the same are required by circumstances ("as circumstances may require").

27. By adhering to the specified forms, I mean adherence not only to the form or format of the specified forms, but more importantly, also to the substance of the forms, and I also mean the supply of all information that is sought in the forms. Thus, to use the present case as an example, the omission of the name of the deceased son from paragraph 1 is a non-adherence to the specified form, because the information sought is not supplied in so far as the deceased son is concerned. Put another way, by omitting the deceased son, the Applicant has, in effect, altered the standard wording of paragraph 1 to one referring to those who survived the deceased and are still living (as at the date of the affirmation).

28. Paragraph 1 of the amended affirmation of the Applicant does not follow the specified form in that it missed out one of the surviving children of the deceased (i.e. Kan Woon Cheung) from the list of surviving persons to share in the deceased's estate.

29. Indeed, paragraph 1 is wrong in that it purports to set out thereunder all the surviving persons entitled to share in the deceased's estate ("the following persons being the only persons entitled to share in her estate"), when in fact the deceased son, whose name has not been included in paragraph 1, was one of those surviving persons entitled to share in her estate (and after his death, his estate was and is entitled to share in the deceased's estate).

30. Likewise, paragraph 6 of the amended affirmation does not follow the specified form in that it fails to set out all the surviving issue of the deceased. It is also incorrect in that the standard wording of paragraph 6 in the specified forms obviously envisages the setting out of all the surviving issue of the deceased under paragraph 6, and by omitting the deceased son from paragraph 6, paragraph 6 has been rendered incorrect.

31. Mr Lau argued that all this has been remedied and rectified by paragraph 6A, the paragraph tailor-made by him to specifically cater for the situation of the deceased son. I agree that anybody reading the amended affirmation as a whole and doing so carefully should have no difficulty in getting the true and complete picture of the situation. But that is, in my judgment, not the point here. The point here is that the form of the administrator's affirmation must be adhered to. Variations or additions may only be permitted if they are required by the circumstances. The passing away of Kan Woon Cheung several months after the demise of the deceased is, in my judgment, not a circumstance requiring the omission of his name from paragraph 1 and paragraph 6 of the amended affirmation, thereby departing from the standard contents of the specified form. The question is not whether the way preferred by Mr Lau to set out the facts in the amended affirmation is or is not effective in presenting to the Registry the complete picture. Rather the issue is whether there is any justification for Mr Lau not to follow the standard way specified by the Registrar pursuant to his statutory power to present the complete picture to the Registry in making the application for grant. That there may be one thousand and one ways to present the facts is one matter. Whether the Applicant may refuse to do it in the way required by the Registrar under his specified form is quite another.

32. There are obvious, good reasons behind the requirement that applications for grant must use the same specified forms, save where circumstances otherwise require. Once the forms have been made (which no doubt were made by the Registrar after careful consultation with the profession), they must be followed in form and in substance. There is no scope for individual creativity that is not required by the circumstances of the case.

33. In my judgment, in the present case the deceased son should be included both under paragraph 1 and paragraph 6. The only necessary modification is in relation to his age that is required to be stated both under paragraph 1 and paragraph 6, in order to cater for the fact that he has passed away in November 1997. Something like "aged 69 years at the time of death on 6 November 1997" would do.

34. Mr Lau argued that the information required to be supplied under paragraphs 1 and 6 is quite "peripheral" to the main (or only) purpose of filing the administrator's oath or affirmation, namely the application for a grant of administration in respect of a deceased person's intestate estate. Mr Lau pointed out that a grant concerns the appointment of an administrator, on whom, by virtue of the letters of administration, title to the intestate estate of the deceased shall be vested, for the purpose of enabling the administrator so appointed to administer the estate, including the distribution of the net assets comprising the estate in favour of the persons entitled to share in the estate pursuant to the intestacy rules. The grant itself does not determine entitlement to the estate, which is determined by the intestacy rules. Thus, so Mr Lau argued, the information sought in paragraphs 1 and 6, which relate really to the question of entitlement, is peripheral to the question of grant. In the light of that, the court or the Registry should not insist on strict compliance with paragraphs 1 and 6 of the specified forms.

35. I reject the argument. The short answer is that, the question of the contents of the specified forms being ultra virus aside, on the proper construction of the Non-Contentious Probate Rules, these specified forms must be adhered to unless there are circumstances requiring variations or additions. The requirement of strict adherence does not depend on the degree of importance or materiality of the information sought in the different parts of the specified form.

36. In any event, I do not agree that the information sought regarding entitlement is as "peripheral" as Mr Lau has tried hard to suggest. The question of surviving issue is, if nothing else, relevant to the question of priority for applying for a grant. It is not only relevant to the grant of probate in the common form, but would also be relevant should there be a subsequent challenge to the grant by way of contentious probate proceedings.

37. Furthermore, whether the intended administrator is prepared to recognise a certain person as a beneficiary under the intestate estate of the deceased or an issue of the deceased, by including his name under paragraph 1 and/or paragraph 6, might well reflect on his suitability to act as the administrator. It must be remembered that notwithstanding the rules as to priority for application for a grant, both the court (under section 36 of the Ordinance) and the Registrar (under rule 26 of the rules) may, in appropriate circumstances, make a grant in favour of a person otherwise having a lower priority to the applicant in question.

Specified forms are ultra vires?

38. I now turn to Mr Lau's fallback position, i.e. the inclusion of paragraphs 1 and 6 in the specified forms is ultra virus the power of the Registrar under rule 2A(1) to specify the form of the administrator's oath or affirmation. This is really an extension of Mr Lau's previous argument on the relevance of the information sought in paragraphs 1 and 6. Mr Lau reminded this Court that no similar information is sought in the equivalent English form (see Form A6.101, Tristram & Coote's Probate Practice (29th ed.) 1051-1052). Mr Lau submitted from his own personal experience that the English probate court has been granting letters of administration for decades in the past without requiring information on entitlement or issue.

39. I agree that as a matter of general principle, there is much force in saying that the Registrar, in specifying the forms to be used, cannot require an applicant to supply information that is wholly extraneous and irrelevant to the application for a grant. To take an extreme (and wholly hypothetical) example, a specified form that requires the applicant to state the colour of the skin of the deceased, or for that matter, that of his issue would be quite repugnant and unacceptable.

40. Yet, I am not at all concerned with anything even remotely similar to such a situation. As I have sought to explain above, I do not view the information sought in paragraph 1 or 6 of the specified forms as irrelevant or extraneous to the application for a grant. The English practice does not persuade me that the information sought is useless or immaterial, thus rendering the inclusion of paragraphs 1 and 6 in the specified forms ultra virus.

41. I have no hesitation whatsoever in rejecting this argument.

Outcome in HCAG 566/2000

42. In short, I dismiss the appeal in HCAG 566/2000.

HCAG 24/2004 - arguments

43. Turning to HCAG 24/2004, the question here is the legal status of the four sons of the deceased and the Applicant under the law. In the widow's affirmation, the four sons are described as the "lawful" sons of the deceased and the widow/Applicant. According to the marriage certificate, the couple were only married in 1986. Given the stated ages of the sons in the affirmation, a realistic possibility must be that when they were born, they were illegitimate sons, and they only became the legitimated sons of the deceased and the Applicant when they eventually got married in 1986. Thus strictly speaking, they should have been described as the "lawful legitimated" sons of the deceased.

44. The possibility of the deceased and the Applicant having been lawfully married to each other pursuant to Chinese customary law prior to the registry marriage in 1986 (and before the giving birth of the four sons by the deceased) has been suggested. It should be noted that under section 7(3) of the Marriage Reform Ordinance (Cap. 178), such a Chinese customary marriage, provided that it satisfies the requirements set out under the section, is, and has always been, a valid marriage recognised in Hong Kong. Another possibility is that prior to the registry marriage (and prior to the birth of the four sons), the deceased and the Applicant were "married" to each other by means of a Chinese modern marriage. Such a Chinese modern marriage is, as a result of section 8 of the Marriage Reform Ordinance, a valid marriage, and is deemed to have been valid since the time of celebration, provided that the requirements under the section are met.

45. Under both of the above possibilities, the four sons would have been lawful sons in the eyes of the law since birth.

46. Yet the marriage certificate states in unequivocal terms that the deceased and the Applicant were respectively a bachelor and a spinster prior to their (registry) marriage. Moreover, Part IV of the Marriage Reform Ordinance specifically provides for the registration of Chinese customary marriages and (validated) Chinese modern marriages, and for that purpose the Registrar of marriages maintains separate registers for the registration of customary marriages and validated Chinese modern marriages, which are different from the ordinary register for registry marriages. Plainly the marriage certificate is not such a certificate of registration.

47. Needless to say, I recognise the possibility of the deceased and the Applicant simply choosing to ignore (if they were ever aware of it at all) the procedure for registration of Chinese customary marriages and Chinese modern marriages in Part IV of the Marriage Reform Ordinance, for the sake of convenience (after all a customary marriage or modern marriage in accordance with section 7 or 8 of the Ordinance would first have to be proved before any such registration could be made), and marry each other in the much simpler way of a registry marriage. See generally Pegg, Family Law in Hong Kong (3rd ed.) 23-26.

48. Yet this possibility is, in my judgment, not sufficient to dispel the doubt arising from the information stated in the marriage certificate. The possibility of the four sons being only legitimated sons remains.

Power to raise requisitions

49. The next question is whether this is a relevant doubt justifying the making of a requisition. As mentioned above, rule 5(1) of the Non-Contentious Probate Rules prohibits the Registrar from allowing a grant to issue "until all inquiries which he may see fit to make have been answered to his satisfaction".

50. In my judgment, the requisition on the status of the four sons is a legitimate subject of inquiry by the Registrar. I accept that given the registry marriage in 1986, whether they were born legitimate or illegitimate may well only be of background importance to an application for grant. However, I do not see the subject as being so remotely connected with the application for grant that it is not a "fit" subject of inquiry by the Registrar.

51. In my view, the rule (rule 5(1)) is obviously designed to give the Registrar much discretion in raising inquiries relating to an application for grant. Unless the inquiries can be shown to be wholly extraneous or irrelevant to the purpose, the Registrar must be entitled to raise them, and there must be a corresponding duty on the part of an applicant to answer them "to his [i.e. the Registrar's] satisfaction".

52. Mr Lau reminded this Court that the deceased passed away on 15 January 2003, i.e. after the enactment of section 3 of the Parent and Child Ordinance (Cap. 429) in 1993, and legitimacy or illegitimacy is no longer relevant in the present context.

53. That may well be so. But that does not alter my view that the Registrar's inquiry relating to the true status of the four sons, arising out of the certificate of marriage and the information it contains, is not wholly extraneous to the application for grant, so that it is not a fit and proper subject of inquiry that the Registrar may make pursuant to his statutory power and duty under rule 5(1).

Answering requisitions

54. As regards answering an inquiry of that sort, in my view, it is quite open to an applicant to state by way of an answer that he or she does not know the true legal position. After all, questions like whether a marriage has been validly and "lawfully" concluded, whether somebody is a "lawful" widow of a deceased person, whether a child is a "lawful" or "legitimated" child of the deceased person, and so forth, are questions of law, which can only be answered by applying sometimes very complicated law, legal principles and (sometimes) expert evidence on marriage law, domicile, and Chinese customary marriages/Chinese modern marriages, on the facts of individual cases. It is, in my view, perfectly legitimate for an applicant to answer a relevant requisition by simply setting out his/her belief (which of course would have to be based on the best of his/her knowledge and information). Conceivably, on many occasions, a short "I don't know" will be the best answer that an applicant can give.

55. The next question is whether any such answer must be provided by means of the administrator's oath or affirmation, and where necessary by amending and re-swearing or making the oath or affirmation.

56. In my judgment, if the inquiry relates to a piece of information that is required to be supplied under the specified form, and what has been set out in the affirmation or oath is incomplete or incorrect (thus amounting to non-adherence to the specified form), the affirmation or oath must be amended accordingly. In all other cases, the answer may simply be supplied in correspondence.

57. Returning to the question of "lawful" children of a deceased person, I note that paragraph 1 of the specified form does not specifically and expressly require the applicant to set out whether the surviving persons entitled to share in the estate are/were the "lawful" widow/children etc. of the deceased or not. It merely requires the "relation" of the person to be stated. However, as I understand it, the practice has always been that the lawfulness of the relationship should be stated. I can see very good sense in the practice. In any event, as a matter of construction, the word "relation" would include such a requirement, for otherwise the answer given will not be a complete answer, subject to the exception that if the lawfulness of the relationship is not certain to the applicant who has to swear the oath or make the affirmation, that would amount to a circumstance justifying a variation of the specified form. In that exceptional case, the applicant would be justified to simply set out his or her belief, if she is able to hold any, about the lawfulness of the relationship under paragraph 1. If, according to the best of his or her knowledge and information, no belief one way or another can be formed regarding the lawfulness of the relationship, that would be a circumstance justifying his or her not saying anything about the lawfulness of the relationship under paragraph 1 at all.

58. Paragraph 6 is similarly worded regarding the surviving issue of the deceased, except that towards the end, paragraph 6 requires the applicant to state that apart from those set out under paragraph 6, the deceased had no other "lawful" children or issue surviving or predeceasing him or her.

59. Two conclusions may be drawn. First, read as a whole, paragraph 6 obviously envisages the applicant setting out all the lawful children or issue surviving or predeceasing the deceased under that paragraph. Secondly, if the applicant is unable to say to the lawfulness of the status of the surviving or predeceasing children or issue, that would of itself be a circumstance justifying a suitable variation of the wording of paragraph 6, or a suitable addition to the affirmation setting out the relevant facts and circumstances.

60. Returning to the facts of the present case, as I have sought to analyse above, the marriage certificate does give rise to a doubt regarding the status of the four sons. The affirmation of the widow states both in paragraph 1 and paragraph 6 that they are the "lawful" sons of the deceased. In my judgment, a clarification is required from the Applicant. If she says that her sons are lawful sons because there was a valid Chinese customary marriage or a validated Chinese modern marriage prior to the registry marriage in 1986, and that marriage actually took place prior to the birth of the four sons, she should so reply to the Registrar. And in that case, what she has stated in her affirmation does not contain any error (as her four sons are indeed lawful sons), and no amendment to the affirmation need be made. Nor need her answer be contained in the affirmation itself - it may simply be supplied by correspondence.

61. If, on the other hand, the Applicant's case is that there was no such prior valid Chinese customary marriage or validated Chinese modern marriage, or that it took place after the birth of the four sons (or any of them), so that the sons (or one or more of them) are only lawful legitimated sons, then not only must she so answer the Registrar (by correspondence), she must also amend her affirmation accordingly so as to correct the mistake (ex hypothesi) regarding the status of the four sons as set out in the affirmation. The amended affirmation must be re-affirmed.

Outcome in HCAG 24/2004

62. To the limited extent indicated in the last two preceding paragraphs, I would vary the direction of the Probate Master. Subject to that variation, the appeal in HCAG 24/2004 is dismissed.

Miscellaneous

63. Mr Lau indicated to the Court that he appeared before the Probate Master as well as on these two appeals at his firm's own expenses, as he was of the view the points raised were of some importance to the general probate practice in Hong Kong. None of his clients would be charged for the costs of the hearings. I appreciate what Mr Lau has done. I am also grateful to the assistance that he has rendered to this Court at the hearing. I certainly hope that apart from making known to the Court and the Registry his viewpoints and suggestions through appearances and appeals of the present type, the normal channel of dialogue between the relevant sub-committee of the Law Society and the Probate Registry will be made use of, so that all pertinent suggestions, comments and views can be exchanged and discussed.

64. The profession should be made aware of the matters dealt with in this judgment, which is therefore handed down in open court.