CHAN CHUN PUI AND ANOTHER v. FENG CUIXIAN

HCAP 13/2007
(formerly HCA 1983/2005)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2007

(formerly ACTION NO. 1983 OF 2005)

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RULING ON COSTS

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1.  In my Judgment handed down on 24 July 2009, the will dated 21 May 2002 of Madam Chan Po Chiu (陳寶珠), deceased, was admitted to probate as Madam Chan’s last will.  I have also made an order nisi that the Defendant should be awarded the costs of this Action.  The Plaintiffs now seek to vary the said costs order.

2.  The applicable legal principles are set out in Nina Kung v.Wang Din Shin (No.2) (2006) 9 HKCFAR 800 at 807-810.  I do not propose to repeat them here.

3.  In this application, counsel for the Plaintiffs submitted that the general rule that costs followed the event should not apply.  Instead, he contended that the costs should be paid out of the Deceased’s estate, or alternatively, that there should be no order as to costs.  In either event, he further submitted that the costs incurred in relation to the Defendant’s change of medical expert should be borne by the Defendant.  He based his submissions on the ground that the Deceased’s mental capacity was a matter which the Court would need to investigate before pronouncing for the 2002 Will (that is, the second exception to the general rule).  Alternatively, the litigation was brought about by the conduct of the Defendant herself, being the residuary beneficiary under the 2002 Will (the first exception to the general rule). 

4.  Counsel for the Defendant, on the other hand, submitted that the dispute did not fall within either of the exceptions.  But in any event, these proceedings were hostile litigation and therefore the general rule of costs following the event should not be displaced.

Discussion

5.  As noted in my Judgment, the question that lay at the heart of these proceedings was whether the Deceased possessed the requisite testamentary capacity at the time of the 2002 Will, which in turn required an inquiry into her ability to comprehend the various matters set out in Banks v. Goodfellow (1870) LR 5 QB 549.

6.  It would be remembered that the Deceased was diagnosed to be suffering from senile dementia of the Alzheimer’s type in December 2001.  It was documented in contemporaneous medical notes that her memory deteriorated and there had been a degree of impairment of her mental function at the relevant time.

7.  Having regard to such medical evidence, the Deceased’s testamentary capacity was clearly an issue requiring investigation before the Court would pronounce for the validity of the 2002 Will.  In my view, the case did prima facie attract the application of the second exception to the general rule as to costs.

8.  As I see it, the real issue on costs turns on the manner in which the Plaintiff had conducted these proceedings.  As Ribeiro PJ said in Nina Kung v. Wang Din Shin (No.2), supra:

“15.   It is, however, important to note that the manner in which the challenge to a will is mounted may determine the court’s approach to costs.  A case may fall prima facie within one of the two exceptions, but if opposition to the will goes beyond putting the proponent to strict proof of its validity and takes the form of hostile litigation, the general rule whereby costs follow the event is likely to be applicable. …..”

And then,

“17.   It follows that in exercising its discretion, the court draws a distinction between litigation reasonably undertaken by a person in order to require the validity of a will to be investigated by the court, and litigation which is fundamentally hostile, where the opposing party takes it upon himself to establish a positive case such as of forgery, fraud or undue influence, with a view to defeating the will and advancing his own claim to the estate over that of the will’s proponent.  ......”

9.  It would be remembered that in present case, the Plaintiffs initially pleaded that the 2002 Will was procured by undue influence of the Defendant.  The plea of undue influence was only abandoned on the first day of the trial.  By asserting undue influence, the Plaintiffs were obviously not content simply to put the Defendant to strict proof of the validity of the 2002 Will.  All the time until the abandonment of the plea, the Plaintiffs were maintaining a positive case that the Defendant had procured the Deceased to make the 2002 Will by improper means.  

10.  The true nature of these proceedings must also be considered in the light of my findings in the Judgment.  From the time after the 2^nd Plaintiff had learnt from Madam Pang that the Deceased had wanted to make a will in 2000, the Chans were concerned to ensure that the Deceased’s estate, particularly the Property, would not eventually fall into the hands of someone outside their family.  They were wary of the presence of the Defendant whom they knew enjoyed close ties with the Deceased and was in physical proximity to her.  Their subsequent attempt to procure a transfer of the Property to Madam Au and the move by the Pangs to secure possession of the Deceased’s cash savings were clear instances of their desire to forestall any disposition by the Deceased of her assets.

11.  The Plaintiffs’ challenge to the 2002 Will was clearly not intended to be confined to putting the Defendant to strict proof of its validity.  Nor were these proceedings conducted with a view simply to assisting the Court in the investigation of the Deceased’s testamentary capacity.  Instead, the Plaintiffs had adduced considerable evidence on the facts regarding the parties’ relationship with the Deceased.  They had challenged the credibility of the Defendant in cross-examination and in final submissions through counsel.  The Plaintiffs had also tendered expert evidence to support their case that the Deceased lacked mental capacity to make a will at the relevant time.  It is obvious to me that all such evidence was adduced with a view to destroying the validity of the 2002 Will in order that the 2000 Will would be pronounced in the Plaintiffs’ favour.

12.  I have not overlooked the submissions of the Plaintiffs’ counsel that the Defendant’s conduct, as residuary legatee, was the cause of the litigation.  He cited, for example, the failure of the Defendant to inform the solicitors who prepared the 2002 Will about the Deceased’s dementia; the failure of the Defendant to disclose the existence of the 2002 Will at the meal after the funeral; the inaction of the Defendant who did not take the initiative to propound the 2002 Will; and the production only of a redacted version of the 2002 Will when copies of the respective wills were exchanged, as causes casting doubts on the validity of the 2002 Will which, he submitted, justified investigation by the Court.

13.  The reality, however, was that much of the evidence adduced by the Plaintiffs went far beyond the investigation of these matters.  In fact, the manner in which this Action was conducted was no different from any adversarial litigation between parties having competing interests in the outcome of the proceedings.  In my view, these proceedings cannot be characterized as anything other than hostile litigation.  Subject to what I am about to say regarding the Defendant’s change of expert, I am not persuaded that the general rule as to costs should be displaced.

Costs Resulting from Defendant’s Change of Expert 

14.  In the course of the trial, the Defendant had substituted Dr. Wong for Dr. Lee as their expert.  Although Dr. Wong had adopted Dr. Lee’s report, Dr. Wong also supplemented his own views and observations.  This necessitated the recall of the Plaintiffs’ expert, Dr. Cheung.

15.  In the circumstances I believe it is only fair that the Defendant should pay the Plaintiffs’ costs incurred as a result of the change of expert and of the recalling of Dr. Cheung to testify on 17 February 2009.

Conclusion

16.  I would therefore vary the costs order nisi and substitute it with the following:

“The Defendant will be awarded the costs of this Action, save and except that the Plaintiffs’ costs incurred as a result of (i) the change of the Defendant’s expert from Dr. Dominic Tak-shing Lee to Dr. Chung-kwong Wong, and (ii) the recalling of Dr. Cheung Hung Kin to testify on 17 February 2009, are to be paid by the Defendant to the Plaintiffs.  All such costs are to be taxed, if not agreed.”

17.  As for the costs of the present application, although the Plaintiffs have achieved a small measure of success in reducing their overall liability, the Defendant has clearly won the substantive argument.  As virtually no time has been spent over any argument on the costs resulting from the change of expert, I think the Defendant should have the costs of this application, and I so order.