HO WAI PING v. HO KA MAN CARMEN

CACV 17/2016
[2018] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2016

(ON APPEAL FROM HCAP NO 16 OF 2009)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the court):

1.  The defendant has applied for leave to appeal to the Court of Final Appeal against the Judgment of this court given on 1 March 2017 (“the Judgment”) dismissing her appeal from a Judgment of DHCJ S T Poon.

Background

2.  Ho Chi Yin (“the Deceased”) had written and signed a document prior to departing for a trip to Africa.  What he told his sister (the plaintiff, who is one of the beneficiaries) to do with the document at the time, and after his return from the trip, has been set out in §§4 and 6 of the Judgment.  The Deceased died suddenly 4½ years later.

3.  At issue in the appeal was whether the judge was correct in finding that the document satisfied s.5(2) of the Wills Ordinance Cap. 30 (ie where the court was satisfied that there could be no reasonable doubt that the document embodied the testamentary intentions of the Deceased, the document was deemed to be duly executed).

4.  The Deceased’s estranged daughter (the defendant), who had been left nothing in the document, argued that the document was only a conditional will in that it was conditional or contingent in its operation on the Deceased meeting his death while on the trip to Africa.

5.  For reasons set out in the Judgment, this court dismissed the appeal with costs.

This application

6.  The defendant has applied for leave to appeal the Judgment under s.22 of the Hong Kong Court of Final Appeal Ordinance, Cap.484.  The application is opposed. 

7.  Mr Sussex SC[1] for the defendant has formulated 5 questions which he says should, by reason of their great general and public importance, be submitted to the CFA for decision.  They are as follows:

(1) “whether Section 5(2) of the Wills Ordinance should be construed as a general alleviation of the formal requirements of Section 5(1), such that a document created years before the death of a deceased person can be regarded as embodying that person’s testamentary intentions, even though that person had time and opportunity to make a will which complied with Section 5(1)”;

(2) “whether Section 5(2) can operate to alleviate the formal requirements of Section 5(1) in circumstances where the deceased person was aware of the formal requirements of a valid will, such, for example, as the requirement for a will to be witnessed”;

(3) “having regard to the policy underlying Section 10 of the Wills Ordinance, whether an application for an order pursuant to Section 5(2) should be acceded to when that application is made, and the relevant document proved or witnessed solely, by a person who stands to benefit if the document purporting to embody the testamentary intentions of a deceased person is deemed to be duly executed”;

(4) “whether the rule in Tyrell v Painton [1894] P 151 (to the effect that where circumstances exist that ought to excite the suspicion of the court and call upon it to be vigilant and jealous in examining the evidence [in] support of the instrument, it ought not to pronounce in favour of the instrument unless the suspicion is removed) applies to an application under Section 5(2), relying upon a document proved or witnessed solely by a person who would receive a benefit under the document, if deemed to be duly executed”;

(5) “whether a document can be said to embody the testamentary intentions of a deceased person if there is extraneous evidence[2] which casts reasonable [doubt] upon whether the document was intended by the deceased person to operate in accordance with its terms”.

Discussion

8.  It is true that (a) the courts have always attached importance to the grant of probate, (b) the Judgment appears to be the first judgment of this court on s.5(2) of the Wills Ordinance, and (c) the Judgment discussed the interesting issue of conditional wills.

9.  However, it is not suggested that there were errors of law regarding s.5(2) or conditional wills in the Judgment.  No issue on construction as such of s.5(2) (the 1^st question above) was raised at the hearing before this court, and it appears to us that the other questions formulated above are simply an attempt by the defendant to re‑argue her case on the facts, but without challenging the concurrent findings of fact that the plaintiff was a credible witness.

10.  As for the “or otherwise” ground, it seems to us that it is also a re‑running of the defendant’s argument on the facts that the document was a conditional will.  Further, the practice of this court is that the question whether leave should be granted on this ground should be left to the Appeal Committee of the Court of Final Appeal.

Order

11.  For the reasons above, the application is dismissed with costs.  Having considered the Statement of Costs provided, we summarily assess costs at $110,000.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Kwan JA:

12.  I agree with the Judgment of Yuen JA.

Hon G Lam J:

13.  I agree with the Judgment of Yuen JA.