ZHAO LIAN v. CHUNG SHIU CHUN

HCAP 11/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 11 OF 2010

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J U D G M E N T

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Background

1. In this action, the Plaintiff seeks an order that: (a) the caveat entered by the Defendant in the Probate Registry of the High Court under Caveat No HCCA 1044/2003 be vacated; (b) the court pronounce in solemn form of law for the will of Hung Yuen (洪元) (the “Deceased”) dated 10 October 2001 (the “Will”); and (c) probate be granted to the Plaintiff.

2. The Plaintiff, formerly a resident in Huiyang in Guangdong Province of the People’s Republic of China (“PRC”), came to know the Deceased in 1992 when they were respectively 26 and 69 years of age.  She developed a relationship with the Deceased and gave birth to their son, Hung Kar Shing (洪嘉誠), on 8 April 1998.  On 5 March 1999, the Plaintiff formally married the Deceased in Huiyang in accordance with the law of the PRC.  That relationship was maintained by the Deceased visiting the Plaintiff in the PRC until April 2000 when he could not travel because of ill-health and thereafter by the Plaintiff visiting the Deceased in Hong Kong on two-way permits until his death on 10 July 2002. 

3. Since 2000, the Deceased resided in old age homes.  Initially, he resided in 劍橋安老院 (“Cambridge Home For The Aged”) in Kowloon City and later in 松柏國際(香港)協會 (“Evergreen Hong Kong”) in Pat Heung in the New Territories.  On 10 October 2001, he executed the Will in Evergreen Hong Kong appointing the Plaintiff as the sole executrix and trustee of his Will and bequeathing all his real and personal property to the Plaintiff and their son Hung Kar Shing as tenants-in-common in equal shares.  The Will was executed in the presence of Liu Chi Ming (“Liu”) and Tsang Ying Cheung (“Tsang”) of Kitty So and Tong Solicitors (“So & Tong”). 

4. Prior to the marriage, the Deceased had cohabited with Chung Shiu Chun (鍾少珍) (“Madam Chung”).  Three children were born out of that relationship: namely Hung Ka Sing (洪家聲) (“Mr Hung”), Hung Ka Yee (洪嘉兒) and Hung Man Fai (洪文輝).

5. The Deceased died on 10 July 2002.  In about May 2003, the Plaintiff applied for grant of probate of the Will under HCAG 4469/2003.  Madam Chung filed a caveat no HCCA 1044/2003 dated 21 May 2003 opposing the grant of probate to the Plaintiff.  On 11 June 2010, the Plaintiff issued a Writ of Summons with a Statement of Claim indorsed against Madam Chung seeking the remedies sought in paragraph 1 above. 

6. The writ was served on Madam Chung on about 18 June 2010, but she failed to file the acknowledgment of service. Madam Chung had knowledge of the issue of the writ and of these proceedings as she and her son, Mr Hung, attended a directions hearing before Master Levy on 20 January 2011.  Noting that Madam Chung might be under a disability, Master Levy adjourned the hearing to 3 March 2011 for the Plaintiff to make any appropriate application.

7. After that hearing, the Plaintiff’s solicitors, Tang, Wong & Chow (“TWC”) contacted Mr Hung to seek more information as to Madam Chung’s disability, but the information obtained suggested that she was not under any disability.

8. At the hearing on 3 March 2011, Madam Chung did not appear.  Instead, Mr Hung appeared on her behalf.  The hearing was then adjourned to 12 May 2011 for the Plaintiff to write to the Official Solicitor to deal with the issue relating to Madam Chung’s possible disability.  On or about 9 March 2011, the Plaintiff was informed that Madam Chung had died. On 21 March 2011, TWC received confirmation of Madam Chung’s death from the Registrar of Births and Deaths.  TWC conducted a probate search in respect of Madam Chung, but yielded no result.  Despite repeated attempts to contact Mr Hung, he did not respond.

9. At the hearing on 12 May 2011, the estate of Madam Chung was not represented.  Master Levy ordered the Plaintiff to reconstitute the action within two months and adjourned the hearing to 28 July 2011.  That time limit was subsequently extended with the master’s leave.

10. As result of another probate search on about 11 July 2011 and further enquiries from the Probate Registry, TWC discovered that grant of probate in respect of the estate of Madam Chung had been issued to Mr Hung and the address of Mr Hung.  By a letter dated 14 September 2011 to Mr Hung, TWC asked if he would represent Madam Chung in this action.  The letter was sent by ordinary post and by registered post.  The one sent by ordinary post was not returned, while the one sent by registered post was returned and marked “unclaimed”.

11. On 8 March 2012, upon the ex parte application of the Plaintiff, Master Levy ordered inter alia that Mr Hung be made the defendant to these proceedings and that these proceedings be carried on as if he has substituted Madam Chung pursuant to Order 15 rule 7(2) of the Rules of the High Court.  Master Levy also gave other consequential directions for the further conduct of these proceedings.

12. Mr Hung did not attend the pre-trial review hearing on 6 June 2013 or the trial of this action on 13 August 2013.

The law and the issues

13. A person who propounds a will bears the legal or persuasive burden of proving on a balance of probabilities that it was the last will of the deceased testator.  He has to prove that: (a) the will was duly executed by the testator; (b) the testator had testamentary capacity at the time of execution of the will; and (c) the testator knew and approved of the contents of the will (see Nina Kung v Wong Din Shin [2005] HKCFAR 387). Anyone who wishes to dispute the validity of a will on any of these grounds bears the evidential burden of putting the relevant ground of challenge in issue.

14. No evidence has been filed by either Madam Chung or Mr Hung.  In the Appearance to Warning filed by Madam Chung dated 30 August 2003, Madam Chung alleged that: (a) she was the lawful kit-fat widow and relict of the Deceased; and (b) the Deceased had no testamentary capacity at the time of execution of the Will.  She did not put forward another will as the last will of the Deceased or challenge the due execution of the Will.  On the issue of the Deceased’s testamentary capacity, she pleaded that the Deceased was diagnosed in December 2000 to have multi-infarct dementia presented with episodic nocturnal confusion and that a date subsequent to the date of the Will he was diagnosed to be suffering from adjustment disorder with depressive reaction and had a depressive episode.

15. As the issue before the court is the validity of the Will, the status of the Plaintiff as the lawful wife of the Deceased or the status of Madam Chung as the kit-fat widow of the Deceased are irrelevant.  Their relationship with the Deceased is only part of the background circumstances against which the court may test the Deceased’s testamentary capacity and knowledge of the content of the Will.  Despite that Mr Hung did not appear, the Plaintiff has to discharge the burden of proving the three elements which constitute a valid will.

Discussion

16. The Plaintiff was married to the Deceased in accordance with the law of the PRC and produced her marriage certificate as evidence of her marriage.  She also produced the birth certificate of her son with the Deceased, Hung Kar Shing, which showed that the Deceased was named as the father of her son.  Though the birth took place a year before the marriage, there is nothing to cast any doubt on the relationship among the Deceased, the Plaintiff and her son.

17. The Plaintiff does not dispute that the Deceased had cohabited with Madam Chung and had three children born out of that cohabitation.

18. The Deceased had two bank accounts with the Bank of China (Hong Kong) Limited and a piece of agricultural land at Lot No 184 in Demarcation District No 128 Yuen Long (“Lot 184”).  According to the Certificate of Exemption from Estate Duty issued by the Inland Revenue Department, the total worth of the Deceased’s estate was $208,120.38.  The Deceased also held another piece of adjacent agricultural land at Lot No 183 in Demarcation District No 128 Yuen Long (“Lot 183”) jointly with Madam Chung and their daughter, Hung Ka Yee.  He used to live in Lot 183 before moving to an old age home.  Madam Chung became the sole owner of Lot 183 following the death of the Deceased and Hung Ka Yee.  According to the Plaintiff, on an occasion in 2000 at Cambridge Home for the Aged, Mr Hung insisted that Lot 183 belonged to Madam Chung and the Plaintiff agreed.

19. Furthermore, according to the Plaintiff, in 2000 at Cambridge Home for the Aged the Deceased indicated to her that as he was old and sick he would not have long to live and hence wished to make a will to provide some money for Hung Kar Shing’s education and livelihood.  At that time, Hung Kar Shing was only two years old.

20. In June 2000, the Deceased’s right leg was amputated due to a diabetic condition.  His left leg was amputated for similar reason in April 2001. After his discharge from hospital, he renewed his intention to make a will. According to the Plaintiff, through the introduction of the Deceased’s friends, the Deceased instructed So & Tong to prepare a will for him.

21. On 9 October 2001, the Deceased told the Plaintiff to meet with the staff of So & Tong in Yuen Long and bring them to Evergreen Hong Kong to arrange for the execution of a will.  The Deceased reiterated that as their son was young, he would give his estate to the Plaintiff and their son to provide for their livelihood and education for their son.  The Plaintiff asked if anything should be left to the children of Madam Chung.  The Deceased replied it was not necessary as he had given them Lot 183.

22. On the morning of 10 October 2001, the Plaintiff met with Liu and Tsang in Yuen Long and took them to Evergreen Hong Kong.  There, they met the Deceased in the dining room where the Will was executed.  The Plaintiff was not present throughout the procedure as she went in and out of the dining room to collect things for the Deceased.  She overheard that the Deceased’s estate would be given to her and their son and that Liu told the Deceased to sign if he agreed with the content of the document and she saw the Deceased, Liu and Tsang signed on a document.  After about a month, a staff of So & Tong asked her to collect the Will from their office.  She collected the Will and gave it to the Deceased who told her to keep it.

23. Liu and Tsang were no longer in the employ of So & Tong.  They were shown the original copy of the Will.  They were able to identify their signatures as witnesses on the Will and recalled having attended to the execution of the Will.  They recalled that Liu explained the content of the Will to the Deceased who confirmed his understanding of the content and signed the Will.  They also signed as witnesses.  They noticed nothing unusual about the Deceased.  They considered the Deceased’s speech was cogent and responses were coherent.  Liu was an administrative manager of So & Tong. He was experienced in witnessing execution of wills.  He said he would not sign as witness if the testator appeared to be under a disability.  I have no doubt in their evidence.

24. The Plaintiff produced a medical report from Dr Constance Chan of Castle Peak Hospital dated 3 December 2009.  The Deceased was under the care of Dr Chan from February to July 2002.  Dr Chan reported as follows:

“[The Deceased] attended first appointment in our clinic on 11 October 2001. He presented with low mood for several months related to his physical disability resulted from his amputations. He was diagnosed to have adjustment disorder with depressive reaction. His cognitive function was assessed by mini mental state examination. He scored 22 out of 30. He lost one mark out of five in calculation and he could not state the address of his old age home. His registration and five-minute recall was normal. In view of his education level, he was considered to have no cognitive impairment. He was mentally fit and his mental condition would not affect his capacity to make testamentary arrangements.”

According to the report, on the day immediately following the making of his Will, the Deceased was found to have no cognitive impairment and was mentally fit to make testamentary arrangements.  The medical report put the Deceased’s testamentary capacity beyond doubt. 

25. Summing up on the evidence, the Will was duly executed by the Deceased.  In view of the size of his estate, the family members he had and their age, in particular the age of Hung Kar Shing, and all the surrounding circumstances, the testamentary disposition in the Will is one which is within the range of reasonableness for a testator in the Deceased’s position to make.  It can therefore be inferred that the Will was the product of the exercise of sound judgment by a person with full knowledge of his surrounding circumstances and obligations.  This inference is supported by the evidence of Liu and Tsang who witnessed the execution of the Will.  Their evidence also suggests that the Deceased knew and agreed with the content of the Will and knew that by executing the Will he was making a testamentary disposition of his estate. The medical evidence from Dr Chan also proved that the Deceased had testamentary capacity at the time of execution of the Will.  There is no evidence of any later will having been executed by the Deceased.  Accordingly, I am satisfied that the Plaintiff has duly proved the Will of the Deceased.

Conclusion

26. The Plaintiff having proved that the Will was the last will of the Deceased, I therefore make the following order that:

(a) Caveat No HCCA 1044/2003 entered by the Defendant in the Probate Registry of the High Court be vacated;

(b) the court pronounce in solemn form of law for the Will of the Deceased dated 10 October 2001;

(c) probate be granted to the Plaintiff; and

(d) the Defendant shall pay the Plaintiff’s costs of these proceedings to be taxed if not agreed.