KWOK MAY SIN KYLIE (IN HER PERSONAL CAPACITY AND IN HER CAPACITY AS THE INTENDED PERSONAL REPRESENTATIVE OF THE ESTATE OF KWOK MEI LUNG, DECEASED) v. FU KE AN

HCMP 302/2018

[2020] HKCFI 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 302 OF 2018

________________________

________________________

________________________________________________

REASONS FOR DECISION AND DECISION ON COSTS

________________________________________________

A. INTRODUCTION

1.  By Originating Summons dated 8 March 2018 (the “OS”), the plaintiff sought, inter alia, orders to the following effect:

(1)  That the letters of administration (the “LA Grant”) of the estate of the late Kwok Mei Lung (the “Deceased”) granted to the defendant under HCAG 2651/2018 be revoked, and that the plaintiff be appointed as executrix of the Deceased’s estate (the “Estate”); and

(2)  Consequential orders for accounts and delivery up of assets, monies and property belonging to the Estate by the defendant.

2.  At the hearing, I granted the following relief in favour of the plaintiff: –

(1)  The LA Grant of the estate of the Deceased granted to the defendant under Grant No HCAG 2651/2018 on 28 February 2018 be revoked.

(2)  A grant of probate in respect of the estate of the Deceased be issued to the plaintiff upon compliance of all and any requisition which may be raised by the Probate Registry.

(3)  An order that the defendant do and shall hold all the assets, proceeds and monies of the Deceased’s Estate in the possession, control or custody of the defendant (if any) on behalf of the Deceased’s Estate on trust.

(4)  An order that the assets and properties of the Estate do vest in the plaintiff.

(5)  An order that the defendant do give a full and proper inventory and account on oath (i) of all the assets and monies of the Estate and their substitutes and/or proceeds; and (ii) of the defendant’s dealings therewith (if any), and all properties and benefits or their present equivalent acquired or derived therefrom (if any), within 28 days hereof.

(6)  An order for (i) payment by the defendant to the plaintiff of all sums found due on the taking of such account (if any); and for (ii) all necessary steps to be taken by the defendant to deliver up the assets, proceeds and monies in his hands representing the assets, proceeds and monies of the Deceased’s Estate (including all the title deeds and documents in relation thereto) to the plaintiff (if any), within 28 days thereafter.

3.  My reasons for granting such relief are set out below.

4.  I shall also set out below my decision on the costs of these proceedings.

B.  RELEVANT BACKGROUND

5.  The background facts are largely undisputed, and some of the salient facts are briefly highlighted below.

B1.  The Deceased’s family, the Estate and the Will

6.  The Deceased was survived by her husband (ie the defendant), her younger sister (ie the plaintiff), her elder brother and her mother.

7.  After the Deceased and the defendant got married, they lived at a flat in Tuen Mun (the “Matrimonial Home”) registered in the name of the defendant’s mother.

8.  The majority of the Estate consists of proceeds and credit balances in various accounts, amounting to a little over $410,000. In addition to that are various jewellery items and some cash.

9.  The Deceased’s will (the “Will”) was made on 23 August 2016.  It was prepared and attested by solicitors and/or the solicitors’ clerk/assistant.

B2.  Death of the Deceased and the period up to the post-funeral reception on 27/01/18

10.  The Deceased passed away on 3 January 2018 in Hong Kong.

11.  On 6 January 2018, the plaintiff, the defendant and other friends/relatives of the Deceased visited the funeral parlour to arrange for the Deceased’s funeral.

12.  On 13 January 2018, the plaintiff, the defendant, the plaintiff’s husband and the plaintiff’s helper attended the Tuen Mun Hospital to make arrangements concerning the remains of the Deceased. Several days later, there was a casual conversation between the plaintiff and the defendant over the telephone.

13.  On 20 January 2018, the plaintiff, the defendant together with various other family members and friends met at the Matrimonial Home to discuss matters concerning funeral arrangements.

14.  The funeral took place on 26 January 2018, and the cremation of the Deceased together with the post-funeral reception took place on 27 January 2018.

15.  During this period, there were frequent exchanges of WhatsApp messages between the plaintiff and the defendant regarding the funeral arrangements and hospital bills.  Nowhere in these voluminous messages did the defendant ever ask specifically whether the Deceased left any will, or raise any discussions concerning the Estate of the Deceased or her assets.

B3.  The defendant asking about assets of the Deceased, and the plaintiff’s message informing the defendant of the Will

16.  In the late evening of 27 January 2018, the same day on which the Deceased’s remains were cremated, the defendant sent a WhatsApp message to the plaintiff asking about various matters concerning the Estate, including in particular the gold bracelets of the Deceased as well as the condolence money received.  Various follow-up messages were also sent on 28 January 2018.

17.  By WhatsApp message sent at 9:11 pm on 29 January 2018, the plaintiff informed the defendant, in clear and unequivocal terms, that (i) the Deceased had made a will; (ii) under the will, the sole executrix and beneficiary is the plaintiff; and (iii) the defendant should not deal with any of the assets of the Estate, which will be dealt with by the plaintiff personally.

18.  In stark contrast with the frequent messages from the defendant since the Deceased’s death on 3 January 2018 until 28 January 2018, there was complete silence from the defendant after receiving the plaintiff’s aforesaid message on 29 January 2018 that the Deceased made the Will leaving the entire Estate to the plaintiff.

19.  On 3 February 2018, the plaintiff, together with her husband, mother and some friends, went to the Matrimonial Home where the defendant was present, bringing with her papers which, according to the defendant himself, the plaintiff had said to be “a copy of the Deceased’s will”.  Despite this, no request was made by the defendant to see the Will or to have a copy of it on that occasion at all: on the contrary, it appears that while the plaintiff was quite willing to show a copy of the Will to the defendant, it was the defendant who refused to even look at or consider the Will – on the defendant’s own case he simply told the plaintiff to instruct solicitors to follow up.  After this visit, there was no further communication between the defendant and the plaintiff.

B4.  Discovery of the LA Grant and commencement of proceedings

20.  Unknown to the plaintiff at that time, on 2 February 2018 the defendant had gone to the Probate Registry to make an appointment for application for the grant of letters of administration. The appointment was made for 20 February 2018.  No notice of these was given to the plaintiff at all beforehand.

21.  On 20 February 2018, the defendant attended the Probate Registry and lodged the necessary papers for the application.

22.  On 26 February 2018, the plaintiff went to the Probate Registry to submit the relevant papers for obtaining grant of probate. She was however informed for the first time by the Probate Registry that another application for grant has been filed (without being informed by whom), and the plaintiff’s application was returned to her.  The plaintiff then instructed solicitors, and a probate search was conducted on 5 March 2018 when it was discovered that the LA Grant had been made on 28 February 2018.

23.  Upon such discovery, the plaintiff applied for and obtained the Injunction Order on 8 March 2018.  On the same day, the OS was issued.  By order dated 16 March 2018, the Injunction Order was continued until further order.  Directions were also given on 16 March 2018 for the further conduct of the proceedings.

24.  At the hearing before me, the defendant did not object to the revocation of the LA Grant or to the grant of probate in favour of the plaintiff pursuant to the Will.  Indeed, nothing is raised whatsoever to question or challenge the validity of the Will.

25.  The plaintiff submits that the duty was on the defendant, not the plaintiff, to diligently make all necessary inquiries to ascertain the existence of the Will (which includes asking for a copy of it), as well as to disclose all material facts to the Probate Registry, when applying for the LA Grant.  Not only did he fail in those duties, he built a wall of silence around himself and deliberately ignored the plaintiff’s attempts to notify him of the Will while applying for the LA Grant behind the plaintiff’s back despite knowing the plaintiff was very likely to contest it.

C.  REASONS FOR REVOCATION OF THE LA GRANT AND GRANT OF PROBATE TO THE PLAINTIFF

C1.  Applicable legal principles and procedure

26.  As a starting point, the following principles concerning the relevant procedure are trite:

(1)  An application for revocation of grant, whether contentious or non-contentious, has to come before a judge of the High Court. Section 5(3) of the Probate and Administration Ordinance, Cap 10 (“PAO”) expressly excludes the power of the Registrar to deal with an application for revocation.

(2)  In cases where it is not clear whether the grantee will consent to the application, the applicant has two options: (a) treat the matter as contentious business and commence a probate action under Order 76 of the Rules of the High Court; or (b) issue an ordinary originating summons and seek directions from the court for the purpose of ascertaining the position of the grantee.

(3)  If the grantee consented to the application, the matter could be dealt with by way of originating summons with a consent summons filed with supporting evidence.  The court could dispose of the matter on paper if it deemed fit.

(4)  If the grantee indicates that the application will be opposed, directions should be sought for converting the proceedings into an action as if it is begun by writ under Order 76.  In a case where the opposition is clearly frivolous, the matter can be disposed of at a hearing of the originating summons.

See:   - Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533 at [2] to [7]

-   Hong Kong Civil Procedure 2020, Practice Note 76/0/2A

27.  In the present case, after the OS was issued, directions were given on 16 March 2018 for parties to file their respective affidavit evidence.  Pursuant to such directions, the defendant filed his affirmation on 28 June 2018 whereby he expressly stated that he has no objection to the revocation of the LA Grant, to the grant of probate in favour of the plaintiff, and raises no objection or challenge towards the validity or authenticity of the Will.

28.  On the other hand: –

(1)  The need to prove a will cannot be waived by parties to a probate action because a grant of probate is the only means by which a will could be proved, and the court’s decree has effect over and above any agreement of the parties.  Where revocation of grant in common form (such as the LA Grant) is sought on the basis that there is a subsequent, valid will that ought to be given effect, the party who wished to rely on the will has to propound the same and prove its validity: see Hong Kong Civil Procedure 2020, Practice Note 76/1/6; Chow Siu Po v Wong Ming Fung [2003] 1 HKC 146 at [106] to [107].

(2)  Where it is sought to revoke a grant of letters of administration on the ground that the deceased in fact left a will on his death and therefore did not die intestate, it is essential that the validity of the will should be proved by evidence.  The court should not revoke a grant of letters of administration, or grant probate of a will, merely because of the consent of the parties: Lee Kwai Keung v Kwo Sze HCAP 27/2017 (11 April 2019, unreported) at [23] and [24].

29.  In terms of propounding/proving the validity of a will in the context of an uncontested/undefended application, there has to be written evidence from at least one attesting witness to prove the due execution of the will.  As observed by DHCJ Lam (as Lam VP then was) in Chow Siu Po v Wong Ming Fung [2004] 1 HKC 10, “…even in undefended cases or compromised cases, for a grant in solemn form, the court will normally require evidence from at least one attesting witness to prove the due execution of the will although such evidence could be in written form …. In short, the proof of a will in a probate action cannot be waived by the parties.” (at [7])

30.  As a result of the aforementioned principles, due to the obtaining of the LA Grant by the defendant in the first place, even if the defendant does not now object to the validity of the Will and/or is willing to consent to the revocation and/or grant of probate in favour of the plaintiff, the present proceedings still have to be commenced by the plaintiff for revocation of the LA Grant, and the court still has to be satisfied of the validity of the Will through proof and evidence by the plaintiff.

C2.  Validity of the Will

31.  It is trite that for a will to be valid and enforceable, the court has to be satisfied of 3 matters, namely: (i) there was due execution of the will; (ii) the testator was of testamentary capacity; and (iii) the testator knew and approved of the contents of the will.

32.  Affidavit evidence has been adduced from Ms Chan Kar Lam, a partner at a firm of solicitors Messrs Yip, Tse & Tang, who was also responsible for preparing the Will, and who also attested the execution of the Will.  It was confirmed that:

(1)  The Will was signed by the Deceased herself, in the presence of the two attesting witnesses, and without the plaintiff being present.

(2)  The contents of the Will, which is written in Chinese, were read and explained to the Deceased, and the Deceased confirmed her understanding and approval of it.  The Deceased also read and reviewed the Will on her own before it was signed.

(3)  Prior to the execution of the Will on 23 August 2016, a medical certificate had been obtained from a Dr Yung Kin Sing dated the same day, who confirmed that the Deceased’s mental state was “satisfactory”, with good orientation as to time, place and persons, good speech and language expression and good memory, with no mental problems.

33.  In light of the evidence, I agree that the Will is clearly valid and enforceable, and ought to be propounded:

(1)  The Will contains a clause confirming that the Will had been read out and explained to the Deceased in Chinese who appeared to have perfectly understood and approved the contents, and a clear attestation clause that it was the Deceased who signed the Will. No suggestion has been made by the defendant that the Will is in any way invalid or defective, or that the attesting witness’s evidence ought in any way not to be believed. Under such circumstances, there is a strong presumption that there had been due execution of the Will.

(2)  If a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval: Hawes v Burgess [2013] EWCA Civ 74 at [13].  “As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will”: per Lord Neuberger MR (as he then was) in Gill v Woodall and Ors [2011] Ch 380 at [14] to [16].  In the present case, such requirements were clearly satisfied.

C3.  Revocation of the LA Grant and grant of probate in favour of the plaintiff

34.  It is trite that a grant of letters of administration will be revoked if the deceased in fact left a will on his death and therefore did not die intestate, on the ground that the grant had been obtained by a false or incorrect statement: Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (21^st ed) at §§22-19, 22-20; Tristram and Coote’s Probate Practice (31^st ed) at §§17.08, 17.11; Re Estate of Cheng Ki Sang (supra).

35.  Given the existence of the Will, which ought to be propounded, it follows that the LA Grant ought to be revoked, and that grant of probate ought to be made in favour of the plaintiff (see Tristram and Coote (supra) at §17.34).

36.  In addition to revocation on the basis of a Will, the fact that the defendant failed to disclose material facts to the Probate Registry (in particular, the existence of the Will, the plaintiff’s attempts to inform him of the Will and the defendant’s failure to make follow-up inquiries with the plaintiff since 29 January 2018) when applying for the LA Grant is also a ground for revocation of the LA Grant: Re Estate of Wong Yuen Leong [2012] 2 HKLRD 124 per Jeremy Poon J (as he then was) at [10], where he observed that “Non-disclosure of material facts in an ex parte application for a grant is a well-established ground for revocation”.  This will be further discussed below, when dealing with costs.

C4.  Consequential orders

37.  The consequential orders sought by the plaintiff at paragraph 47 of her Skeleton Submissions were not opposed by the defendant. Accordingly, I granted the orders as sought by the plaintiff which are set out at paragraph 2 hereinabove.

D.  COSTS OF THE PROCEEDINGS

38.  The plaintiff seeks costs of these proceedings against the defendant on 3 main grounds: –

(1)  Costs to follow the event: Costs should follow the event, especially since the wrongful LA Grant obtained by the defendant effectively forced the plaintiff to issue court proceedings for revocation, but for which the plaintiff could have obtained a grant in common form.  Any other costs order would be unjust to the plaintiff as the sole beneficiary of the Estate, since it would essentially mean that the plaintiff would be penalized, given in particular the relatively small size of the Estate.

(2)  Failure to make inquiries: The LA Grant was the direct result of the defendant failing to discharge his duty to act with full diligence to ascertain whether the Deceased had made any wills, and had deliberately refused to consider the Will or to ask for a copy of such despite having knowledge or notice of such.

(3)  Failure to make full and frank disclosure: the defendant failed to make full and frank disclosure of all material facts to the Probate Registry when applying for the LA Grant without notice to the plaintiff.  In particular, he failed to disclose (i) the Will existed according to the plaintiff and/or that the plaintiff had informed him of the existence of the Will; and that (ii) the defendant had failed to make any follow-up inquiries or request for a copy of the Will after being informed by the plaintiff.  Had such facts been disclosed, and/or had the plaintiff been given notice, the Probate Registry would have raised requisitions and/or been informed of the Will, which would have prevented the LA Grant from being issued thereby dispensing with the need for these proceedings.

D1.  Costs should follow the event

39.  The starting point is that costs is in the discretion of the court, and that the usual rule for probate action is for costs to follow the event: see, for example, Williams, Mortimer & Sunnucks (supra) at §33-01.

40.  It is clear that such a rule applies to actions for revocation of grants, even where the grantee was absent from the proceedings and thus did not contest the proceedings, and where a court’s ruling was still required: Re Estate of Kwan Chung [2013] 6 HKC 29 (costs ordered on indemnity basis); Re Lam Choi Hing [2007] 1 HKLRD 23.

41.  In Chen Chin Chiang v Chen Chi Lung, HCAP 25/2014 (17 May 2018, unreported), letters of administration were revoked on the basis that there was a will.  The validity of the will was undisputed, and the only main issue was as to costs (at [23] to [25]).  The court ultimately awarded 80% of the costs to the plaintiff (at [53] to [55]).

42.  Further, in Ghafoor v Cliffe [2006] 1 WLR 3020, a limited grant of letters of administration was revoked by consent.  Costs were ordered against the grantees.  In making such a costs order, the court held that:

(1)  While it was true that there had been consent by the grantees to revocation, “in agreeing to the revocation of the grant of administration, [the grantees] were bowing to the inevitable. … In my judgment, the claimants were entitled to the order for revocation which they sought.  On this basis, the claimants would in the ordinary course be entitled to an order for costs against the defendants or some of them” (at [66]) (emphasis supplied).

(2)  In relation to the argument that the limited grant was obtained only to preserve the assets of the estate, the court held that while that may have been the case, “on a true view of the facts which might have become apparent if they had given notice to the claimants either before the application or shortly after the grant, [the grantees’] actions were unnecessary and unjustified”, such that “[the grantees’] lack of bad faith does not provide a ground for not awarding costs against them” (at [68]) (emphasis supplied).

(3)  It was right that the applicant beneficiaries' costs be paid by the grantees.  None of the costs should be paid out of the estate, as that would principally be to the cost of the applicant beneficiaries (at [71]).

43.  Applying the above principles to the present facts, I accept the following submissions of the plaintiff that the general rule ought to apply:

(1)  The ground for revoking the LA Grant is that it had been obtained by a false or incorrect statement made by the defendant.  As such, the revocation is essentially based on the improper conduct of the defendant.

(2)  While it is true that the defendant has not objected to the revocation of the LA Grant after the present proceedings were commenced, in truth all he was doing was “bowing to the inevitable”: there is nothing at all to suggest that the Will is invalid or ought not be given effect to.

(3)  In any event, the non-objection by the defendant to revocation after the LA Grant had been obtained is simply neither here nor there: the plaintiff is still required to commence the present proceedings in order to revoke the LA Grant.  Had the defendant not obtained the LA Grant, the plaintiff would have been able to obtain grant of probate in common form through the usual non-contentious route from the Probate Registry.  The situation is no better than if the defendant had been absent from the proceedings altogether.  On the contrary, despite professing not to object to the relief sought by the plaintiff, the defendant has exacerbated costs by filing a substantial affirmation in support of his attempt to ask for costs, in which he makes personal attacks against the plaintiff.  No attempts were made by the defendant to apply to revoke the LA Grant himself.

(4)  The lack of bad faith or professed good faith by the defendant is not a reason for not awarding costs against the defendant or to depart from the usual rule.  The truth is that on the true state of affairs which would have been apparent had the defendant given notice to the plaintiff before applying for the LA Grant, namely that the Will existed and was valid and enforceable, the LA Grant was unjustified and would not have been granted by the Probate Registry.

(5)  Any other costs order would in effect mean that costs of the proceedings would be borne by the plaintiff as the sole beneficiary of the Estate.  This would be wholly unjust, as she will be severely prejudiced given the relatively small size of the Estate (around $410,000).  Effectively, a substantive portion of the Estate would be consumed by the legal fees.

D2.  The defendant failed to comply with his duty to act with due diligence and to make all necessary inquiries concerning the Deceased’s will

44.  Further, I agree that not only should the defendant bear costs personally in accordance with the usual rule, but he should also be made to bear costs since the LA Grant and the entire proceedings were occasioned due to the defendant’s failure to comply with his duties.

45.  It is well-established that an applicant for grant of letters of administration, even if acting in person, is under a duty to exercise due diligence and to make all necessary enquiries to ascertain whether the Deceased left a will.  Thus, paragraph 6 of the Form L1.1a filed in support of an application for letters of administration requires a declaration by the applicant that he has made a diligent search among the deceased’s papers and effects for any will.

46.  The duty is not simply for the applicant to search amongst the belongings of the deceased by himself: rather it extends to making inquiries with relatives of the deceased to ascertain whether any will was made.  In this regard, it is instructive to bear in mind what was said by Lam J (as he then was) in Re Estate of Yeh Lien Teh, HCMP 1809/2008 (8 October 2008, unreported), which concerns an application by the administratrix for revocation of the grant of letters of administration, where his Lordship was at length to stress the importance of complying with such a duty (at [7], [10]):

“7. In my judgment, even though the application was made without benefit of legal advice, it behoves an applicant for a grant, whether by way of probate or letters of administration, to exercise due diligence in the making of affirmation in support of his or her application for a grant. Therefore, if an applicant comes to the Probate Registry to apply for grant on the basis that the deceased died intestate, a duty falls upon such applicant to make all necessary inquiries within his or her power to ensure that the deceased had not made any will prior to his death. If there were other relatives, it is not enough for an applicant to make a search amongst the belongings of the deceased by himself or herself and find no will. In my view, it is the duty of such applicant to make inquiries with those other relatives as well to find out whether the deceased had made a will.

…

10. I cannot emphasise more about the importance of an applicant applying for grant to exercise due diligence and care in terms of the information contained in his or her supporting affirmation. It is a serious matter to make a mistake in these sorts of documents because the court relies on the content of these documents to decide whether the grant should or should not be made and to whom the grant should be made. Any mistake in those documents will have to be explained, to say the least. This is the requirement of the law.” (Emphasis supplied)

47.  The discharge of such a duty is required by the proper administration of justice: Re Estate of Wan Sing Hon [2010] 4 HKLRD 621 at [22].

48.  Consistent with the duty of due diligence on the applicant for letters of administration, in Chung Wai Chun Susanna v Chung Pan Yuk, HCAP 22/2015 (3 May 2018, unreported), where the court revoked letters of administration on the basis of there being a valid will, the court ordered that costs of the action up to the substantive hearing (which had to be adjourned for the claimant to file further evidence to prove the will) be borne by the grantee on an indemnity basis, since “the [grantee] applied for the Grant despite having knowledge of the existence of the Will”: at [11].

49.  The duty falls squarely on the defendant to ascertain the existence of the Will and to make inquiries with the plaintiff for such.  Yet, as submitted by the plaintiff, the defendant wholly failed to exercise due diligence to ascertain the Will or to make inquiries with the plaintiff.  Not once prior to the LA Grant did the defendant ask for the Will. To the contrary, he deliberately turned a blind eye towards the plaintiff’s attempts to inform him of the Will and refrained from making further enquiries: –

(1)  As stated in paragraph 17 above, the plaintiff informed the defendant of the Will through WhatsApp message on 29 January 2018 in clear and unequivocal terms.  No reply was received from the defendant at all, and no request was made by the defendant for a copy of the Will.  On the contrary, he deliberately ignored this, because he allegedly “did not find [the plaintiff’s] bare assertion believable”.

(2)  On 3 February 2018, the plaintiff personally visited the defendant at the Matrimonial Home, whereby he was informed that the plaintiff was in possession of a copy of the Will.  No request was made by the defendant for the Will.  Rather, the defendant deliberately ignored what the plaintiff said about her possession of the Will: on his own case, he simply told the plaintiff to instruct solicitors to contact him to deal with the matter.

50.  The reason put forward by the defendant as to why he did not make any inquiries with the plaintiff despite her attempts to inform him of the Will, but rather deliberately ignored her statements, was that he “did not find [the plaintiff’s] bare assertion believable” without seeing a copy of the Will when it was easy for the plaintiff to show him such. What the defendant’s argument essentially amounts to is simply this: that because he had not seen the Will, he was not under a duty to ask to see it or make reasonable inquiries.  I agree this completely turns the duty of due diligence on its head, and is fundamentally wrong.

51.  The defendant also made the point that throughout the process of preparing for the Deceased’s funeral, the plaintiff never mentioned the existence of the Will, and uses this as a further argument why he believed there was no will.  I agree that such an argument is a non-starter: –

(1)  Effectively, all that the defendant is saying was that prior to 29 January 2018, he did not have notice or knowledge of the Will.  This does not explain why he proceeded with applying for the LA Grant on 20 February 2018, when by then two attempts had been made by the plaintiff to inform the defendant of the Will, nor does it justify him ignoring those attempts and not making further inquiries with the plaintiff since 29 January 2018.

(2)  Nowhere in the WhatsApp messages exchanged between 3 January 2018 to 27 January 2018 did the defendant ever ask about the existence of the Will or how the Estate ought to be managed or distributed.

(3)  The only words relied on by the defendant that remotely resemble some sort of inquiry were the very ambiguous words, said by the defendant orally and without written record, about whether the Deceased “said anything” (“有冇講低啲乜野”), spoken on occasions with other family members and friends around, and in the context of making funeral preparations for the Deceased barely a week after the Deceased’s death.  Such vague and ambiguous language, taken in the proper context, were properly and naturally understood to have been referring to the Deceased’s wishes concerning her funeral arrangements and handling of her remains.  This was clearly inadequate to fulfill the defendant’s duty of due diligence and to make all necessary inquiries.  No mention was expressly or specifically made by the defendant regarding the Deceased’s will or estate during the period between the Deceased’s death and the end of the funeral and cremation.

52.  In summary, the defendant does not have any valid excuse at all for ignoring the plaintiff’s clear and unequivocal statement that the Will existed.  He obtained the LA Grant without notice to the plaintiff despite knowing that the plaintiff was very likely to contest it, in deliberate disregard of the Will and the plaintiff’s attempts to inform him of it.  In so doing, I agree the defendant has taken upon himself the risk of having to bear the costs liability should his decision turn out to be wrong. That risk has now materialized, and I agree the defendant should be responsible for the costs incurred on an indemnity basis.

D3.  The defendant failed to make full and frank disclosure of all material facts when applying for the LA Grant

53.  The LA Grant was a common form grant applied for by the defendant without notice to the plaintiff or any other family members of the Deceased.  It was therefore an ex parte application, and as such the defendant was under a duty of full and frank disclosure: –

(1)  As held by the court in Ghafoor v Cliffe (supra) at [46] – [47], the principles of disclosure applicable to applications without notice “apply to applications under the Non-Contentious Probate Rules”.  The applicant for the grant “should have clearly set out the facts as known to him” in his affidavit, especially where he had time to investigate the position (at [54]).  In circumstances of uncertainty, instead of using a rigid form of words, it would be “far better to summarize the circumstances, and explain the uncertainties” (at [85]).

(2)  This was applied and adopted in Re Estate of Wan Sing Hon (supra) at [22], by Lam J (as he then was), where he agreed that “the duty of full and frank disclosure applies equally to non-contentious probate applications as in ex parte applications for an injunction”.

(3)  Similarly, in Re Estate of Cheung Hung [2011] 1 HKLRD 455, Lam J (as he then was) once again reminded at [29] that “by reason of the ex parte nature of an application, each applicant and those advising him or her owe a duty of full and frank disclosure to the court. They also have a duty to exercise due diligence in ensuring that the relevant information is provided to the court. Thus, the court expects a solicitor acting for an applicant for grant to have carried out all necessary investigation pertaining to an application (including investigation on matters relevant to the issue of priority and suitability) in preparing the application and providing answers to requisitions”.

(4)  The above principles were again confirmed and applied in Re Estate of Wong Yuen Leong (supra) at [10] to [11], where the court observed as follows:

“10.  Under section 33(1) of the Probate and Administration Ordinance, Cap 10, a grant of letters of administration may be revoked if it appears to the court that it ought not to have been granted. Non-disclosure of material facts in an ex parte application for a grant is a well-established ground for revocation…

11.  The rationale behind this ground is self-evident. Given the nature of an ex parte application, the applicant and his legal advisers must proceed with the highest good faith. It is imperative that they should make full and frank disclosure of all facts and matters material to the application for grant. Time and again, the court has reminded the parties and their legal advisers of the importance to fully discharge the duty and warned them of the serious consequences that may follow if they do not. …” (emphasis supplied)

54.  In the present case however, as submitted by the plaintiff, the defendant clearly failed to discharge his duty to make full and frank disclosure.  In particular, he concealed various material matters based on which he knew or ought to have known about the existence of the Will from the Probate Registry, including in particular the following facts:

(1)  The fact that on 29 January 2018, the defendant received a WhatsApp message from the plaintiff informing him in unequivocal terms that the Deceased had left a will whereby the plaintiff was the sole executrix and beneficiary.

(2)  The fact that on 3 February 2018, the plaintiff arrived at the defendant’s home holding papers which were made clear by the plaintiff to be a copy of the Deceased’s will.

(3)  The fact that no further follow-up inquiries or requests to see a copy of the will was made by the defendant after being informed by the plaintiff of the existence of such, such that his declaration in paragraph 6 of the Form L1.1a that he had “made a diligent search among [the Deceased’s] papers and effects for any will made by her” was inaccurate and/or misleading.

55.  Such matters, had they been made known to the Probate Registry, would have led to requisitions being raised, and also would likely have led to notice of the defendant’s application being given to the plaintiff (see: power to give such directions by the probate master as observed in Re Estate of Wan Sing Hon (supra) at [21]), whereby the plaintiff would then have a chance to inform the Probate Registry of the Will.  These would have prevented the LA Grant from being made, thereby dispensing with the need for these proceedings.  Indeed, the defendant should never have proceeded without notice in the first place, given that it was obvious the plaintiff would contest any grant to the defendant.

56.  In such circumstances, the defendant should be liable for costs.  The usual order is for the party responsible for material non-disclosure to bear costs, and costs may be ordered on the indemnity basis if the non-disclosure was deliberate: Velatel Global Communications Inc And Another v Chinacomm Ltd And Others, HCA 1978/2011 (8 March 2013, unreported) at [5] and [6].  For the reasons set out above, I accept that the defendant’s decision to ignore the plaintiff’s attempts to inform him of the Will was deliberate, such that the failure to disclose such facts to the Probate Registry ought to warrant costs to be awarded on the indemnity basis.

E.  CONCLUSION ON COSTS OF THE PROCEEDINGS

57.  By reason of the matters set out above, I order that the costs of and occasioned by these proceedings, including all costs reserved, shall be borne by the defendant.  Such costs are to be taxed on the indemnity basis if not agreed.

58.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.