CHAN KIN MAN v. CHAN KAM YIN

HCAP 6/2018

[2021] HKCFI 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 6 OF 2018

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JUDGMENT

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INTRODUCTION

1.  The application before the Court is a summons issued by the plaintiff (“P”) under Order 14 Rule 1 of the Rules of the High Court, Cap 4A (RHC), and under the inherent jurisdiction for summary judgment against the defendant (“D”) for the Deceased’s will dated 14 December 2011 (“Will”) be pronounced in solemn form and that P be granted probate of the Will (“O14 Summons”).

2.  On 29 January 2021, about 4 days before the hearing before this Court, D issued a summons for leave to file and serve her 3^rd affirmation (“3^rd Affirmation”) to exhibit a medical report dated 21 August 2018 prepared by Dr Paul TM Shea of the Deceased (“Medical Report”) and other documents filed in Probate Registry under HCCA 6248/2016 and HCAG 694/2017.  P opposed to the late filing of the summons. 

3.  P and D are 2 out of 4 siblings and the Deceased, their mother, passed away in December 2016.  At the heart of their dispute is a property which was purchased in the joint names of the Deceased and her husband (the parties’ father) in March 1997 (“Property”).  After the Deceased’s husband passed away in 2008, the Deceased became the sole registered owner of the Property, which upon her death, forms part of the Deceased’s estate. D moved to live with the Deceased and the parties’ youngest sister Chan Kam Lai in the Property after D’s divorce in 2011.  Chan Kam Li moved out of the Property in mid 2013, leaving D and Deceased residing there.  D has continued to reside in the Property after the Deceased’s death. 

4.  The Deceased made the Will on 14 December 2011, and appointed P as the sole executor and bequeathed all her estate, including the Property, to P.

5.  The present probate action was commenced by P for, amongst other things, the Will be pronounced in solemn form of law and that P be granted probate to the estate of the Deceased.

6.  D has lodged an acknowledgment of service indicating that she intends to contest the action and has later filed a defence and counterclaim (“D&C”).  D has made no admission to the Will and has put P to proving the Will in solemn form of law, and D counterclaims, amongst other things, for a declaration that she is the legal and beneficial owner of the Property on the assertion that the Deceased had promised the Property to her in 2012 and that D had relied on the Promise and acted to her detriment.  In her reply, P denies D’s claims.

7.  On 30 April 2019, P issued the O14 Summons supported by his affirmation filed on the same day (“P’s Supporting Affirmation”).  D opposed the O14 Summons and filed her opposing affirmation on 23 July 2019 (“D’s Opposing Affirmation”), to which P then filed his reply on 19 August 2019 (“P’s Reply Affirmation”) together with an affirmation from the parties’ sister Chan Kam Lai supporting P’s case.

8.  Prior to the P’s issue of the O14 Summons, the parties have each filed their affirmations in relation to the Deceased’s testamentary scripts under Order 76 Rule 5 of RHC, which will be referred to as their respective “TS Affirmation”.  Included in the hearing bundles before this Court was also D’s summons and supporting affirmation issued in September 2018 to strike out part of P’s statement of claim. 

9.  Counsel Ms Candy Tang appeared for P at the hearing before this Court and Mr Wayne Hariman appeared for D.

P’S CASE FOR THE SUMMARY JUDGMENT

10.  P’s case is that the Will should be propounded in its solemn form, by reason that (i) it was executed at a firm of solicitors Messrs KY Lo & Co before a solicitor and a clerk of the firm, and there was an interpretation clause that the Will was interpreted to the Deceased, and thus the Will was duly executed; and (ii) D did not put up any positive challenge of the Will being executed properly.

11.  P’s case is further that the D&C should be dismissed as it is practically moonshine.

D’S 3^RD AFFIRMATION

12.  As said, P opposed D’s late summons for leave to file D’s 3^rd Affirmation, complaining that it was a delaying tactic, and that the delay was prejudicial to P and further the Medical Report and/or other documents were irrelevant.

13.  It was submitted by Mr Hariman on behalf of D that she was not necessarily bound by her pleaded defence in resisting a summary judgment application and that D could show cause by affidavit or otherwise to the satisfaction of the Court relying on paragraph 54 in Tso Yuk Yin v Wan Wai Hung, [2018] HKCFI 2798, HCA 1578/2016, 24 December 2018, which dicta was also applied by Deputy District Judge Au Yeung in paragraph 33 of CRP/PE Munroe Street Owner LLC v Junwei Consulting Trade Co Limited [2021] HKDC 71, DCCJ 4700/2019, 22 January 2021.

14.  I accept Mr Hariman’s submission that D was not necessarily bound by her pleadings in resisting a summary judgment application.  It is quite clear that the Medical Report has been available to D for some time and so are those documents filed in the Probate Registry.  There was no proper explanation from D as to why she chose to seek leave to file them shortly before the hearing.  However, notwithstanding this, the Medical Report was prepared by Dr Paul TM Shea who was the Deceased’s treating doctor and P had himself produced in his P’s Supporting Affirmation 19 medical receipts for the Deceased’s consultation with Dr Shea between 28 March 2013 and 26 January 2016, 18 of which were between March 2013 and February 2015.  P should have knowledge of the Deceased having consulted Dr Shea regularly during that period.  I am not satisfied that any real prejudice would be suffered by P by the late production of the Medical Report, which would shed light as the Deceased’s medical condition between 2013 and 2016.  

15.  As for the other documents filed in the Probate Registry, they were in connection with an appearance entered by P in response to D’s caveat and also D’s affirmation in her application for the letters of administration of the Deceased’s estate.  No doubt P was aware of these documents and P should suffer no prejudice to D now producing a full set of those documents which were filed in the Probate Registry.

16.  As there was no real prejudice to P, I am prepared to grant leave to D to file her 3^rd Affirmation.  In any event, there was no objection from P for this Court to consider the 3^rd Affirmation and the documents produced therein on de bene esse basis.

17.  However, although I am prepared to grant leave to D to file her 3^rd Affirmation, I do not find the contents thereof or the documents produced therein really advance D’s case in the present application.

18.  Dr Shea is a Specialist in Geriatric Medicine. In the final paragraph of the Medical Report, Dr Shea concluded that “[the Deceased] suffered from Parkinson’s disease, Parkinson’s disease dementia, old cerebrovascular accident, hypertension, hypercholesterolaemia, bilateral osteoarthritis of knee.  She had impaired cognitive function, and she could walk with frame at home.  Her Parkinson’s symptoms were under control”.

19.  It is however not exactly clear as to whether the Deceased was in fact suffering from all the above when she first presented herself to Dr Shea on 28 March 2013, as according to Dr Shea, at the 1^st consultation, the Deceased was alert with good communication and she could obey order well.  To put is in context, the Deceased was 69 years old when she died on 25 December 2016, and therefore at the time of the 1^st consultation, she was about 66 years old.  In any event, this 1^st consultation was some 15 months after the Deceased executed the Will on 14 December 2011, when the Deceased was 64 years old.  There was no sufficient evidence in the Medical Report to indicate as to whether the Deceased did or did not have the requisite testamentary capacity at the time of her executing the Will.  In any event, it is not D’s pleaded case that the Deceased had no testamentary capacity at the time of her executing the Will.  I thus do not find the Medical Report advances D’s case in the present application.

20.  D had also stated that when she made the affirmation on 13 January 2017 in applying for the letters of administration of the Deceased’s estate, she had made a diligent search among her papers and effects for any will made by the Deceased, but she had been unable to find such a will.

21.  In fact, in D’s Opposing Affirmation, she had already stated that she never knew about the existence of the Will and that when the Deceased passed away, all the children of the Deceased held a meeting and none of them expressed knowledge of the existence of the Will, and that was why D stated in her D&C of her intention to cross examine the witnesses produced by P in support of the Will[1].

22.  As said earlier, the parties’ youngest sister Chan Kam Lai has filed an affirmation to support P’s case.  She had deposed to the Deceased having informed her of the existence of the Will and that P and she did not want to let D know of the existence of the Will when the Deceased was alive. 

23.  What is clear is that it was not disputed that D was not aware of the existence of the Will.  D’s evidence in her affirmation filed in support of her application for grant indicated that she was not aware of the existence of the Will.  The only additional evidence in D’s 3^rd affirmation was that she had made a diligent search among the papers and effects of the Deceased but was not able to find any will.  

DISCUSSION

Whether the Will should be propounded in its solemn form summarily

24.  Ms Tang had referred this Court to paragraphs 16-18 of Yau Sau Chun v Yau Tim Wo HCAP 9/2016, unreported judgment dated 10 March 2017 and also paragraphs 7 of Liu Ching Yuen v Liu Hau Kan Fong HCAP 34/2012, unreported judgment dated 5 December 2013.

25.  Both the above unreported judgments had referred to the reported judgment of DHCJ Jeremy Poon, as he then was, in Re Lau Siu Wah Deceased [2005] 1 HKC 364, HCAP 3/2004.  As set out in paragraphs 13- 19 therein, Order 14 of RHC applies to a probate action so that in an appropriate case, the court may give summary judgment to propound a will in solemn form.  This is not disputed by Mr Hariman.

26.  Re Lau Siu Wah (Deceased) was considered by Cheung JA in his judgment in Choy Po Chun and another v Au Wing Lun [2012] 2 HKLRD 148, who has explained therein the distinction between grants or representation in “common form” and those in “solemn form”, and Cheung JA has stated in paragraphs 15 to 20 of his judgment as follows:

“15. The plaintiffs seek to propound the 2002 will in solemn form. The distinction between grants of representation in common form and those in solemn form are as follows. A will is proved in ‘common form’ where its validity is not contested or questioned. On the other hand, a will is proved in ‘solemn form’ by the executor, or a person interested under the will, propounding it in a claim to which the persons prejudiced by it have been made parties, and by the court, upon hearing evidence, pronouncing for the validity of the will and ordering the issue of a grant. The difference in effect between a probate which has been granted in common form, and a probate which has been granted in solemn form, is that the former is revocable, and the latter, provided proper notice has been given to all persons interested, is, subject to two exceptions, irrevocable. See: Tristram and Coote’s Probate Practice, 30^th edition, paragraph 26.03.

16. Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4)[2] but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution, see: paragraph 76/8/1 of the Hong Kong Civil Procedure 2012.

17. Given the nature of a contentious probate action, the court raised with the parties whether Order 14 summary judgment proceedings is applicable to such an action. On the face of it, Order 14 does not exclude its application to a contentious probate action. In Re Lau Siu Wah [2005] 1 H.K.C. 364, it was held that Order 14 applies to probate actions. This was followed in Sum Wan Piu Paul v. Lau Siu Hong HCAP 3/2004 and in Lisa Poncet v. Kho Sin Tek Henry (unrep., HCAP 19 of 2003) [2007] H.K.E.C. 446 an action for the grant of letters of administration.

18. To complete the picture, the commentary at paragraph 14/12 of the English Supreme Court Practice 1999 is also relevant. It stated the position prior to the introduction of the new rule for summary judgment in rule 24 of the Civil Procedure Rules:

“Formerly O.14 did not apply to probate actions, which were tried in the Probate Divorce and Admiralty Division.  Now that such actions are tried in the Chancery Division, there is no longer any reason in principle why summary judgment should not be given in such an action.  It will, however, only rarely be appropriate, given that any person whose interest in the estate of a deceased person is prejudiced by a testamentary document may compel the executor or other person seeking to propound it to establish it by the examination of the attesting witnesses.”

19. Tristram and Coote’s at paragraph 38.08 commented that

“Summary judgment under CPR Pt 24 is available but seldom likely to be appropriate in a probate claim.”

20. It should be noted that none of the Hong Kong cases I have referred to were concerned with the raising of a counterclaim in the probate action.  While I am not prepared to say that the mere existence of a counterclaim will preclude the application of the summary judgment procedure, the court must tread carefully before giving effect to this procedure.  Ultimately the question is whether credible triable issues have been raised in a contentious probate action.”

(emphasis added)

27.  In the present case, as said earlier, it was not D’s case that the Deceased did not have the requisite testamentary capacity at the time of her allegedly executing the Will.  It was not pleaded D in the D&C that at the time of the alleged execution of the Will the Deceased did not know or approve of its contents.  As seen in paragraph 3 of the D&C[3], D merely insists upon P proving the Will in solemn form and that D intends to cross examine the witnesses produced by P in support of the Will.  There has been no positive case raised by D in the D&C. 

28.  Further, although D has filed a counterclaim, her counterclaim is not in in fact in respect of any relief or remedy in respect of any matter relating to the grant of probate of the Will.  D’s counterclaim is only in relation to the legal and beneficial ownership and/or a life interest she claims she has in the Property based on promissory/proprietary estoppel.  There is no counterclaim in relation to any competing will as in the case of Choy Po Chun.

29.  On the other hand, it seems from the commentary quoted by Cheung JA in paragraph 18 of his judgment from the English Supreme Court Practice 1999, any person whose interest in the estate of a deceased person is prejudiced by a testamentary document may compel the executor or other persons seeking to propound it to establish it by the examination of the attesting witnesses.

30.  Had the Deceased died intestate, D being one of the Deceased’s 4 children would have an interest in the Deceased’s estate.  As P is the only beneficiary under the Will, D is clearly a person whose interest in the estate is prejudiced by the Will.  Further, as seen in paragraph 16 of the judgment of Cheung JA, D is entitled to give notice in her defence that she merely insists upon the Will being proved in solemn form of law and only intends to cross-examine the attesting witnesses.

31.  Mr Hariman had also referred the Court to what was stated by Chow J in his judgment in paragraph 13 of Lam Chung Wai and Lam Hi Way [2017] HKCFI, HCAP 29/2015, 15 December 2017 , as follows:

“13. Pausing here, I should mention that although the authenticity of a will in a probate action may not be disputed, where a party seeks probate of the will in solemn form, it is still necessary for him to adduce evidence to prove that the will was duly executed by the testator (see Re Estate of Yau Wai Wah (No 1), HCAP 3/1998, 30 January 2003, at paragraphs 121 to 123 per Deputy High Court Judge Lam, as he then was; and Re Estate of Yau Wai Wah (No 2), HCAP 3/1998, 23 July 2003, at paragraphs 4 to 7). …..”

32.  In the above case, the plaintiff and the defendant were the only executors and trustees named in the will of their late mother who executed the will in the presence of a solicitor and a clerk of the solicitor’s office.  The plaintiff and the defendant had each contended that the other should be removed as executor of the will and probate of the will should be granted to the remaining executor.  However, during the trial, neither party originally adduced any evidence to prove the due execution of the will by their mother, and after the conclusion of the final submissions, Chow J granted them leave to adduce further evidence on that issue and the parties later submitted a statutory declaration of one of the attesting witnesses to prove that the will was duly executed by the testatrix in his presence and in the presence of the other witness.

33.  As seen in paragraph 13 quoted above, Chow J had referred to two judgments of DHCJ Lam, as he then was in Re Estate of Yau Wai Wah referred to by Chow J above.  At the present hearing, this Court had invited the parties to make further submissions on those two judgments. 

34.  In his 1^st judgment in Re Estate of Yau Wai Wah, although after a trial, DHCJ Lam, as he then was, granted an order revoking the grant of probate to the defendant therein of a later will, the learned judge declined to pronounce for the earlier will as sought by the plaintiff as there was no evidence as to the due execution of the earlier will adduced before the Court, and neither the plaintiff nor any witnesses called by him was present when the earlier will was made.  Although the earlier will was made in a solicitors’ firm and its execution was witnessed by a solicitor and a clerk, the learned judge had referred to paragraph 39-08 in Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 18^th Ed, namely that “Where a will is being set up, evidence of one of the attesting witnesses should be adduced[4]”. 

35.  Subsequently, the learned judge in his 2^nd judgment in Re Estate of Yau Wai Wah granted leave to plaintiff to re-open the case and to adduce the affirmation of one of the attesting witnesses as to the execution of the will.

36.  Mr Hariman has also referred to paragraph 134 of this Court’s judgment in Cheung Ki Wing v Cheung Lai Yee [2019] HKCFI 2086, HCAP 26/2015, 22 August 2019 where this Court had stated the Court would normally require evidence from at least one attesting witness, as witness of the Court, to prove due execution of the will, referring to Chow Siu Po v Wong Ming Fung [2004] 1 HKC 10[5] and Phipson on Evidence (19 Ed)[6].

37.  In fact, as said by Chow J in paragraph 17 in his judgment in the Yau Sau Chun case (aka Re Estate of Yau Tung Hoi, which is one of the authorities relied on by Ms Tang), it is trite that before a will may be propounded in solemn form, it must be proved and the burden is on the proponent of the will to prove amongst other things that the testator knew and approved of the contents of the will, referring to paragraph 173 per Ribeiro PJ in Wang Din Shin v Nina Kung (2005) 8 HKCFAR 387[7]. Further, in the Yau Sau Chun case, there was evidence given by solicitor who was one of the attesting witnesses relating to the preparation and execution of the later will.

38.  In the other authority relied on by Ms Tang, namely the Liu Ching Yuen case, the probate file of the solicitors who prepared the will was said to have been destroyed and there was no reason to think that meaningful discovery therefrom could be taken[8].  However this showed that there were efforts made to contact the solicitors and to obtain evidence of due execution, and in any event, although the plaintiff in that case succeeded in obtaining summary judgment, the will which was pronounced by Chung J in solemn form was only limited to a piece of land in the New Territories.

39.  In the present case, although P had in 1^st Affirmation stated that the Deceased executed the Will at a firm of solicitors Messrs KY Lo & Co and the execution was witnessed by a solicitor Lam Lai Fong and her clerk Lee Wing Man[9], there had been no affirmation evidence from either of the attesting witnesses as to due execution of the Will by the Deceased, nor had any enquiries been made of the solicitors firm or the attesting witnesses.  It was not clear whether anyone had accompanied the Deceased to the solicitors’ firm.  It was not P’s evidence that he was present at the execution of the Will by the Deceased, nor was it Cham Kam Lai’s evidence that she was present.  Although in P’s Supporting Affirmation, he had stated that apart from Chan Kam Lai, his aunt Law Wai Chun and also the Deceased’s bank manager at the Chong Hing Bank Madam Au Yeung Man Shan knew of the existence of the Will and that it was Madam Au Yeung Man Shan who suggested to the Deceased to execute a will[10], neither Law Wai Chun or Madam Au Yeung Man Shan had made any affirmation.  It was also not quite clear as to where the Will had been kept since execution by the Deceased. 

40.  As seen earlier, even though D has not raised a positive case or any competing will, D is entitled to give notice in her defence that she insists upon P having the Will propounded in solemn form and that D only intends to cross examine P’s witnesses, although if D is found to have no reasonable ground for opposing the Will, she may be ordered to pay the costs of P[11]. At present, there is no sufficient evidence as to the due execution of the Will for this Court to pronounce the Will in solemn form.  Having considered all the above, I have come to the view that D has convinced this Court that there is a triable issue and that the matter should go to trial.  In my view, this is not an appropriate case where summary judgment can be granted. 

D’s counterclaim

41.  There are no other reliefs sought in the amended statement of claim.  Although P had previously sought other reliefs including but not limited to seeking possession of the Property and damages for trespass, the claims for these reliefs have already been struck out by consent pursuant to the Order of Master Chow of 21 November 2018[12].  The only reliefs sought in the amended statement of claim are for the Will to be pronounced in solemn form of law and that P be granted probate of the Estate of the Deceased. 

42.  Further, P has not issued any summons to strike out D’s counterclaim, nor has P sought any order to strike out D’s counterclaim in the O14 Summons.

43.  P through his affirmation evidence has attacked D’s pleadings, case and evidence on proprietary and promissory estoppel. However, as pointed out by Mr Hariman, it is not clear what P is seeking to achieve.  D’s pleadings in her D&C were originally in relation to the original set of reliefs sought by P for possession of the Property and for damages for trespass.  D had taken issue with those reliefs sought by P on the basis that P was not suing as the executor of the Deceased’s estate, and in fact P had conceded that he had no standing and therefore the prayers for those reliefs were by consent struck out. 

44.  As pointed out by Mr Hariman, the situation has not changed.  Notwithstanding P’s application for summary judgment, and whether he is entitled to the Will being pronounced in solemn form of law and granted probate or not, in the present action, P is not suing as executor of Deceased’s estate.

45.  Mr Hariman submitted that it would be fallacious and misconceived for P to raise any argument that this summary judgment application automatically encompasses an application for striking out and dismissal of the D&C.  I accept his submission.

46.  Having said this, D’s counterclaim in seeking those reliefs including a declaration that D is vested with the entire legal and beneficial interest in the Property is also made against P in his personal capacity.  However, this was not an issue raised by either of the parties, and there were no submissions in this regard.  Further, as said earlier, there was no striking out application before this Court. 

CONCLUSION

47.  Having considered all the above, I am of the view that P’s O14 Summons should be dismissed with costs to D, with certificate for Counsel.  Such costs are to be summarily dismissed on party and party basis.  D is to lodge a statement of costs within 14 days, and P is to lodge his list of objections within 7 days thereafter.  P is to pay the costs summarily assessed within 14 days.  

48.  At the commencement of the hearing, this Court had invited the parties to consider whether instead of proceeding to argue on the O14 Summons, they should consider the alternative that P’s claim to proceed to trial on affidavit evidence under the provisions of Order 76.  In light of what has been said in this judgment, the parties ought to reconsider their respective position to save costs and time.