CHU PONG YUEN v. LEE YUET MEI

HCAP 19/2017 &
HCAP 27/2017
[2019] HKCFI 925

HCAP 19/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2017

________________________

________________________

and

HCAP 27/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 27 OF 2017

________________________

________________________

(Heard together)

________________________

DECISION

________________________

INTRODUCTION

1.  There are before the court 2 Consent Summonses in these probate actions seeking, in each instance, (i) an order that a grant of letters of administration be revoked, (ii) leave to discontinue the action, and (iii) an order that the plaintiff be granted probate of a will in common form if entitled thereto.

2.  The court was not satisfied that the orders sought by consent ought to be made, and directed an oral hearing to hear submissions by the parties in support of the applications.

HCAP 19/2017

3.  Mr Lee Man Hung, deceased (“Mr Lee”) passed away on 18 May 2015 in Hong Kong.

4.  Mr Lee apparently made a limited will on 4 March 2008 (“the 1^st Will”) prior to his death.  That will was prepared by Messrs Rene Hout & Co (RH & Co), and was executed in front of two clerks to RH & Co, namely, Wong Yee Man Winnie and Lau Chuck Ching.  Under the 1^st Will, Mr Lee appointed Chu Pong Yuen (the Plaintiff, “Mr Chu”) as the sole executor and trustee of the will, and devised and bequeathed a property known as Lot No 235 in Demarcation District No 16, Tai Po, New Territories, Hong Kong (“the 1^st Property”) to Mr Chu absolutely.

5.  On 13 August 2015, the Defendant (“Madam Lee”) obtained a grant of letters of administration of the estate of Mr Lee (“the 1^st LA”).  According to the statement of assets and liabilities of the deceased dated 5 August 2015 attached to the 1^st LA, apart from a bank account at Hang Seng Bank with a credit balance of HK$259,902.11 and a property in Tai Po (Section A of Lot No 671 in DD 36), the estate of Mr Lee had no other asset.  The 1^st Property was not listed in the said statement of assets and liabilities of the deceased.  According to the Land Registry records, the 1^st Property was assigned to Mr Lee on 4 March 2008 for the consideration of HK$650,000.

6.  On 6 October 2017, Mr Chu commenced a probate action (HCAP 19/2017) against Madam Lee seeking a revocation of the 1^st LA, and probate of the 1^st Will in solemn form.  On 19 January 2018, Madam Lee filed an acknowledge of service of writ of summons, indicating that she did not intend to contest the proceedings commenced by Mr Chu.

7.  On 14 February 2018, Mr Chu and Madam Lee filed a consent summons (“the 1^st Consent Summons”) seeking the relief as mentioned at the beginning of this decision.  On 15 February 2018, the court directed:

(1) Madam Lee to lodge the original 1^st LA in the Registry within 14 days;

(2) Madam Lee to file an affidavit to explain the failure to locate the 1^st Will when applying for the grant, confirm what estate had been administered, stating the size and nature of any un-administered estate, and confirm how she proposed to deal with the estate that she had administered upon the revocation of the grant within 21 days; and

(3) Mr Chu and Madam Lee each to file an affidavit of testamentary scripts within 14 days.

8.  Madam Lee made an affirmation on 26 July 2018 (which was filed out of time on 19 November 2018 with the court’s leave), and lodged the original 1^st LA in the Registry on 3 August 2018, in compliance or purported compliance with the court’s directions referred to in sub-paragraphs 7(2) and (1) above respectively. In her affirmation, Madam Lee said that she was previously unable to locate the 1^st Will despite the efforts she had made in dealing with all the documents left by Mr Lee, the main reason being that the 1^st Will had all along been kept by Mr Chu and she simply did not know him prior to these proceedings.  Madam Lee also says that she does not know the size of the 1^st Property.

9.  Neither Mr Chu nor Madam Lee complied with the court’s direction referred to in sub-paragraph 7(3) above. Eventually, after the court’s further direction dated 25 January 2019, Mr Chu filed an affidavit of testamentary scripts on 30 January 2019, and Madam Lee did so on 13 February 2019.

10.  On 14 February 2019, the court directed that the 1^st Consent Summons should be considered at an oral hearing.

HCAP 27/2017

11.  Mr Ma Wai Hong Danny, deceased (“Mr Ma”) passed away on 31 October 2015 in Hong Kong, leaving his widow (the Defendant, “Madam Kwo”) and an infant son surviving him.

12.  Mr Ma apparently made a limited will on 26 April 2013 (“the 2^nd Will”) prior to his death.  That will was prepared by RH & Co, and was executed in front of the said Wong Yee Man Winnie and Lau Chuck Ching. Under the 2^nd Will, Mr Ma appointed Lee Kwai Keung (the Plaintiff, “Mr Lee K K”) and Li Fu Wing as executors and trustees of the will, and devised and bequeathed a property known as Section O of Lot No 419 in Demarcation District No 21, Tai Po, New Territories, Hong Kong (“the 2^nd Property”) to them absolutely.

13.  On 3 February 2016, Madam Kwo obtained a grant of letters of administration of the estate of Mr Ma (“the 2^nd LA”).  According to her affirmation made on 26 January 2016 in support of the application for the 2^nd LA, after the death of Mr Ma, she had searched the papers and belongings left behind by Mr Ma but could not find any will made by him.  According to the statement of assets and liabilities of the deceased dated 26 January 2016 attached to the 2^nd LA, apart from Mr Ma’s MPF entitlements, the estate of Mr Ma had no other asset.  The 2^nd Property was not listed in the said statement of assets and liabilities of the deceased.

14.  On 18 December 2017, Mr Lee K K, as one of the executors named in the 2^nd Will, commenced a probate action (HCAP 27/2017) against Madam Kwo seeking a revocation of the 2^nd LA, and probate of the 2^nd Will in solemn form.  On 1 February 2018, Madam Kwo filed an acknowledge of service of writ of summons, indicating that she did not intend to contest the proceedings commenced by Mr Lee K K.

15.  On 15 February 2018, Mr Lee K K and Madam Kwo filed a consent summons (“the 2^nd Consent Summons”) seeking the relief as mentioned at the beginning of this decision.  On 26 February 2018, the court directed:

(1) Madam Kwo to lodge the original 2^nd LA in the Registry within 14 days;

(2) Madam Kwo to file an affirmation to explain the failure to locate the 2^nd Will when applying for the grant, confirm what estate had been administered, stating the size and nature of any un-administered estate, and confirm how she proposed to deal with the estate that she had administered upon the revocation of the grant within 21 days; and

(3) Mr Lee K K and Madam Kwo each to file an affidavit of testamentary scripts within 14 days.

16.  Madam Kwo lodged the original 2^nd LA in the Registry on 3 August 2018 and made an affirmation on 22 November 2018, in compliance or purported compliance with the court’s directions referred to in sub-paragraphs 16(1) and (2) above respectively.  Neither Mr Lee K K nor Madam Kwo complied with the court’s direction referred to in sub-paragraph 16(3) above.

17.  In her affirmation made on 22 November 2018, Madam Kwo said that she was previously unable to locate the 2^nd Will despite the efforts she had made in dealing with all the documents left by Mr Ma, the main reason being that the 2^nd Will had all along been kept by Mr Lee K K and she simply did not know him prior to these proceedings.   

18.  On 29 November 2018, the court directed that the 2^nd Consent Summons should be considered at an oral hearing.

BASIC PROCEDURAL STEPS TO BE COMPLIED WITH IN A REVOCATION ACTION

19.  In a probate action seeking the revocation of a previous grant made by the court, there are a number of procedural steps to be taken which are often overlooked by practitioners.

20.  Lodging the grant in the Registry: under Order 76, rule 4(1) of the Rules of the High Court, where, at the commencement of an action for the revocation of a grant of probate of the will or letters of administration of the estate of a deceased person, the probate or letters of administration, as the case may be, have not been lodged in court, then –

(a) if the action is commenced by a person to whom the grant was made, he shall lodge the probate or letters of administration in the Registry within 7 days after the issue of the writ; or

(b) if any defendant to the action has the probate or letters of administration in his possession or under his control, he shall lodge it or them in the Registry within 14 days after the service of the writ upon him.

21.  Affidavit of testamentary scripts: under Order 76, rule 5(1), unless the Court otherwise directs, the plaintiff and every defendant who has acknowledged service of the writ in a probate action must swear an affidavit –

(a) describing any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and

(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person. 

22.  Further, under Order 76, rule 5(2), any affidavit required by that rule must be filed, and an office copy thereof and any testamentary script referred to therein which is in the possession or under the control of the deponent, must be lodged in the Registry within 14 days after the acknowledgment of service by a defendant to the action or, if no defendant acknowledges service and the Court does not otherwise direct, before an order is made for the trial of the action.

23.  Proof of due execution of a will is necessary to support an action to revoke a grant of letters of administration made on the basis of intestacy: 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 died intestate, it is essential that the validity of the will should be proved by evidence.  The probate court would not grant probate of a will in solemn form by consent.  In Lam Chung Wai v Lam Hi Way, HCAP 29/2015 (15 December 2017), at paragraph 13, the following was stated by this court: “… 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).”

24.  Trial on affidavit evidence: under Order 76, rule 12, where, whether before or after the service of the defence in a probate action, the parties to the action agree to a compromise, the Court may order the trial of the action on affidavit evidence. Whether the court should make an order for the trial of a probate action on affidavit evidence would depend on the circumstances of the case.  In an action to revoke a grant of letters of administration on the ground that the deceased left a will on his death and therefore did not died intestate, one of the matters which the court should take into account is whether, on the face of the will sought to be propounded, there is any reason to doubt its due execution or validity.  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 without examining the underlying evidence of the case.

CONSENT SUMMONSES SHOULD BE DISMISSED

25.  In the present case, no evidence has been adduced by Mr Chu/Mr Lee K K to prove the due execution of the 1^st and 2^nd Wills.  Further, the dispositions made in those wills are, on the evidence before the court, quite inexplicable.  There is no evidence of any apparent relationship between the testators and the executors, which might explain the dispositions in favour of the latter.  When the matter was raised with Mr Fu of RH & Co, who appeared for Mr Chu and Mr Lee K K at the hearing on 2 April 2019, Mr Fu told the court, surprisingly, that he had no instruction on why the testators would make the gifts in favour of the executors (notwithstanding the fact that his firm apparently prepared both the 1^st and 2^nd Wills), and that his instructions were merely to apply for the orders sought under the Consent Summonses.  Further, it appears that the two grantees did not know the testators had made the wills, had no knowledge of the wills until after commencement of these actions, and did not know the executors at all.  It is also somewhat surprising that the grantees (particularly Madam Kwo who was the wife of Mr Ma) did not know that the testators owned landed properties in Hong Kong.  In these circumstances, there are obviously questions regarding the validity of the two wills which would require the court to carefully examine the evidence surrounding the execution of the two wills in order to be satisfied of their validity.  As a matter of fact, no evidence on the due execution of the wills have been tendered.  It follows that there would be no basis to revoke the grant of the 1^st and 2^nd LAs at this stage, or grant probate of the 1^st and 2^nd Wills (whether in common form or in solemn form), as sought under the 1^st and 2^nd Consent Summonses.

26.  Mr Fu asked the court to adjourn the hearing in the event that the court was not minded to make orders in terms of the 1^st and 2^nd Consent Summonses.  I do not consider that it would be appropriate to adjourn the hearing, because even if Mr Chu/Mr Lee K K were to seek to adduce affidavit evidence on the due execution of the wills, I would not be minded to try these probate actions on affidavit evidence.  In any event, an order made after a trial on affidavit evidence is different in nature from an order made under a consent summons.

27.  In all, I dismiss the 1^st and 2^nd Consent Summonses, with no order as to costs.