TSANG GRACE YEE MAN (曾綺雯) also known as GRACE YEE MAN TSANG EBTEHADJ v. TSANG WILLY (曾偉剛)

HCAP 17/2018

[2020] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 17 OF 2018

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BETWEEN

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D E C I S I O N

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Introduction

1.  In this action the Plaintiff (“P”) challenges the will of her late father, Mr Tsang Kam Tong (“Deceased”) dated 26 April 2017 (“2017 Will”) and the grant of probate to her elder brother, the Defendant (“D”).

2.  The present application is a summons taken out by P on 26 March 2019 (“Summons”)[1] under O 14A, r 1 of the Rules of the High Court (Cap 4A) (“RHC”) for:

(1) Determination on the issue (“Issue”) of whether the grant of probate of the 2017 Will to D on 5 February 2018 (“Grant”) should be revoked under s33(1) of the Probate and Administration Ordinance (Cap 10) (“PAO”) when:

(a) D failed to disclose three Chinese documents allegedly executed by Deceased on 21 June 2017 purporting to be wills of the Deceased (“3 Chinese Documents”) in the course of applying for the Grant; and

(b) The Grant was made without any investigation into the validity of the 3 Chinese Documents.

(2) If the answer to the aforesaid question is in the affirmative, final judgment be entered against D for an order that:

(a) The Grant be revoked under s.33(1) of the PAO;

(b) The registration of the Grant in the Land Registry against Shop B, Ground Floor, No 24A, Pak Tai Street, Kowloon Hong Kong (“Property”) be vacated.

3.  The Summons was originally scheduled to be heard on 11 February 2020.  By reason of the public health risk arising from the COVID-19 pandemic, the courts were generally closed with cases generally adjourned from 29 January 2020.  The parties agreed to have the Summons determined on paper.  Pursuant to the further direction of this Court on 10 March 2020, reply submissions were lodged by P on 23 March 2020 and by D on 24 March 2020.

Background

4.  The Deceased married Madam Yeung Chiu Yung (aka Tang Chiu Yung and Tsang Yeung Chiu Yung) (“Madam Yeung”) in January 1952 and they had three children, namely D (the eldest son), P (a daughter) and Mr Tsang Joseph Wai Man (the youngest son).

5.  The Deceased and Madam Yeung lived in the United Kingdom between 1960s and 2016.  Madam Yeung passed away at the age of 84 in April 2014, having left her last will of 29 October 2013.  Probate of Madam Yeung’s estate was granted to the Deceased on 14 November 2014.

6.  It is not disputed that :

(1) On 22 October 2014, the Deceased executed a will in United Kingdom, appointing P as the sole executrix and leaving his residuary global estate to his children in equal shares (“2014 UK Will”);

(2) On 10 November 2014, the Deceased executed a will (limited to estate outside United Kingdom) in Hong Kong at the solicitors’ office Messrs C P Lin & Co, appointing P as the sole executrix and leaving all his non-UK estate to his children in equal shares (“2014 Non UK Will”)[2].

7.  On 29 June 2017, the Deceased passed away in Shenzhen, China, at the age of 87 years old.  The Deceased left behind assets and properties in both Hong Kong and Mainland China, including landed properties in both places.

8.  According to D:

(1) On 26 April 2017, the Deceased executed the 2017 Will[3] in Hong Kong in D’s present solicitors’ office, appointing  D as  the sole executor and trustee, and sole beneficiary of the entire estate of the Deceased.

(2) Then, 8 days  before his death, on 21 June 2017, the Deceased executed the 3 Chinese Documents[4] whilst he was in Mainland China, which were entitled “Will (1)”, “Will (2)” and “Will (3)”, bequeathing various landed properties located in Mainland China to D. D claimed that the Chinese Documents were discovered in a safe located in the Deceased’s Shenzhen residence within one week after the Deceased’s death[5].

9.  On 26 July 2017, P, through her solicitors, filed a Caveat (“Caveat”)[6] at the Probate Registry against the estate of the Deceased. Upon the expiry of the Caveat, P did not file a new caveat.

10.  In the meantime, D took out an application for probate.  In the Affidavit by Executor dated 6 November 2017 and filed on 7 November 2017[7] (“Executor’s Affidavit”), D did not disclose the existence of the 3 Chinese Documents, and D stated that the Deceased died domiciled in Hong Kong and was also permanently resident in Hong Kong and that  the Deceased frequently travelled to the Mainland for vacation, and that he went to Shenzhen on about 27 June 2017 and suddenly died of acute hepatic failure in Shenzhen on 29 June 2017.

11.  After the expiry of  the Caveat with no new caveat having been entered, the Grant[8] was made to D under the 2017 Will on 5 February 2018.  On 25 April 2018, D registered the Grant in the Land Registry against the Property.

12.  P issued the writ herein on 2 May 2018[9].

The parties’ respective pleaded case

13.  It is P’s pleaded case in her statement of claim (“SOC”) that since about 2016, the Deceased’s health began to decline and that his mobility became limited and that in about April 2016, the Deceased moved to Mainland China to recuperate.

14.  The above is denied by D in his defence and counterclaim (“DCC”) and D has averred in his DCC that from 1960s to around 2006, the Deceased would stay in Shenzhen from time to time, and from 2006 to 2016, the Deceased would stay in Shenzhen in around winter time and would stay in the UK in around summer time, and from around late March 2016 onwards, the Deceased had stayed in Shenzhen, and D stayed with him to take care of him on a daily basis.

15.  It is not disputed that the Deceased had undergone heart surgery in Hong Kong in 2016, save that P said it was in October 2016 whilst according to D, the Deceased underwent minimally invasive heart surgery in Hong Kong twice, one in September 2016 and once in October 2016, and that the Deceased was discharged from hospital after a couple of nights each time.   It is also P’s pleaded case that she was informed by D that the Deceased was admitted to the hospital in or about March 2017 by reason of pleural effusion and that the x-rays scan showed that there were signs of cancer in the Deceased’s lungs.  D does not seem to have specifically denied that the Deceased was admitted to the hospital in about March 2017, save that his pleaded case is that the Deceased was discharged on 6 April 2017 and was recorded to have nothing unusual.

16.  Anyway, it is P’s pleaded case that, amongst other things, that towards the end of 2016, the Deceased had become disoriented as to the extent of his assets, and that (1) the Deceased was not of sound mind, memory and understanding when the 2017 Will was executed; further and/or in the alternative, (2) the Deceased lacked testamentary capacity and/or knowledge and approval at the time of the execution of the 2017 Will; and further and/or in the alternative, (3) the execution of the 2017 Will was obtained by fraud, and further or in the alternative, (4) [probate of] the 2017 Will ought not to have been granted without investigation  for the reasons that: (i) D was and still is in possession of the 3 Chinese Documents, which if found to be validly executed, is each a testamentary script of the Deceased; and (ii) in the course of applying for the Grant, D failed to disclose the 3 Chinese Documents. 

17.  P claims in the SOC, amongst other things :

(1) An order that the Court shall pronounce against the validity of the 2017 Will;

(2) An order that the Grant be revoked under s 33(1) of POA;

(3) An order that the Court shall pronounce in solemn form the 2014 Non UK Will;

(4) An order that the administration of all and singular the estate and effects of the Deceased be granted to P as sole executrix and trustee as named in the 2014 Non UK Will;

(5) An order that the registration of the Grant in the Land Registry against the Property be vacated.

18.  In the DCC, D has denied the above, and has counterclaimed, amongst other things, that the 2017 Will be propounded in solemn form.

General principles on applications under O 14A, r 1

19.  The general principles on an application under O 14A, r 1 have been summarized by Recorder Ma SC (as he then was) in Rockwin Enterprises Ltd v Shui Yee Ltd & Ors [2003] 3 HKC 174[10], at [18]:

“Once seized of an application under O 14A, the court’s approach is essentially a three-step approach:

(1) Is the relevant question one of law or of the construction of a document?

(2) If so, is that question one that should be determined under the O 14A procedure?

(3) If the answer to (2) is ‘yes’, what is the determination of that question and what orders should the court make as a consequence of determining that question?”

20.  As said by the then Recorder Ma SC, usually Step (1) will cause little difficulty for the court to ascertain.  In respect of Step (2), the Court has to be satisfied of the following:

(1) The question of the law or construction is one that is suitable for determination without a trial.  In other words, the court has all the necessary facts and matters before it in order to determine the question of law or construction (“1^st Condition”).

(2) A determination on the question would finally determine (subject to possible appeal) the entire cause or matter or any issue or claim therein.  It is not necessary that the determination of the question should finally determine the action.  It is enough that a claim or an issue in the proceedings would be finally determined (“2^nd Condition”).

(3) Even if the above two conditions are fulfilled, the Court still retains a residual discretion whether or not to embark on a determination of the question under O 14A (“Residual Discretion”).

See: Rockwin Enterprises Ltd v Shui Yee Ltd (supra)[11], at [19]-[20] per Recorder Ma SC (as he then was); Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd & Another [2003] 3 HKLRD 62[12], at [23] per Chan PJ.

21.  As to how the Residual Discretion should be exercised, much would depend on the circumstances of the case and the perception and instinct of the judge seized of the matter: Rockwin Enterprises Ltd v Shui Yee Ltd (supra)[13], at [24], at [26].  Factors relevant to the Court’s decision on how to exercise the Residual Discretion include:

(1) Whether the question is a dominant feature of the case;

(2) If the question is dealt with, whether this may or will enable the parties to avoid the expense of a trial and assist them in the efficient disposal of the action;

(3) The Court can take an overall view of the matter to see the context in which the question arises.  If the Court is of the view that there will not be a great saving of time or costs in determining the question (or indeed if it feels quite the opposite), this would be a factor against adopting the O 14A procedure.  For example, if the question involves the issue that is not determinative of the action or is but one of many issues or which may at the end of the day be an academic one, a court may well not embark on a determination under O 14A.  In such situations, it may be that a determination by the Court leading possibly to appeals at two further levels, will result in more delay and expense to the parties than if the whole matter is decided at one go at trial.

(4) On the other hand, an issue may recur so much on a continuing basis that to determine it may not only be convenient but extremely desirable.  For example, where the determination of an issue would result in the discovery process not being as extensive or expensive as might otherwise be the case, it may well be appropriate to use the O 14A procedure.

See: Rockwin Enterprises Ltd v Shui Yee Ltd (supra)[14], at [24]-[25].

P’s grounds for the Summons

22.  The grounds for the Summons are essentially :

(1) There was a material non-disclosure of the 3 Chinese Documents in the ex parte application for the Grant by D;

(2) The last testamentary instrument may not be the 2017 Will.

D’s grounds in opposition 

23.  Mr To has set out 5 grounds for his submissions that P’s present application is wholly unsuitable and without merit:

(1) The application is unsuitable as the Issue is not with P’s pleaded case;

(2) The application is unsuitable as the Issue at most represents a peripheral alternative in P’s case, and no material saving of costs and time can be achieved;

(3) The application is without merit as proof of foreign will is not accepted (let alone required) by the Probate Registry when it disposes of foreign properties only;

(4) The application is without merit as it is not the function of a grant to enable a representative to administer property outside Hong Kong and hence the proof a foreign will;

(5) The application is without merit as the basis for the invocation of s 33 of the PAO remains to be unexplained.

Step (1) – Is the Issue one of law or of the construction of a document?

24.  Mr Li submitted that the Issue is one of law.  The crux of P’s case is that the failure to disclose the 3 Chinese Documents at the time of D’s ex parte application for the Grant was a breach of his duty of full and frank disclosure, and thus the Grant ought not to have been granted and that the Grant should be revoked under section (1) of the PAO.

25.  There were no specific submissions made by Mr To under     Step (1) as to whether the Issue is one of law.  I am prepared to accept Mr Li’s submission in this regard, that the Issue is a question of law.  

Step (2) – Is the Issue one that should be determined under the O 14A procedure

1^st ground – whether the Issue is part of P’s pleaded case

26.  Mr To’s submission in this regard is premised on paragraph 17 of the SOC[15], in that  the only premise for P’s case that the Grant ought not to have been granted is her contention that the 2017 Will was invalid.

27.  The relevant part of the SOC begins at paragraph 12, which is the first paragraph under the section entitled “The Pretended Will [ie the 2017 Will] Should Be Revoked”.  In this section, and as mentioned earlier, P has pleaded various reasons why the 2017 Will should be revoked, including:

(1) Under paragraph 12[16], the Deceased was not of sound mind, memory and understanding when the 2017 Will was executed.

(2) Under paragraph 13[17], the Deceased lacked testamentary capacity and/or knowledge and approval at the time the execution of the 2017 Will.

(3) Under paragraph 14[18], the execution of the 2017 Will was obtained by fraud.

(4) Under paragraph 15[19], the 2017 Will ought not to have been granted without investigation into the 3 Chinese Documents, which D failed to disclose in the course of applying for the Grant.

28.  Following these paragraphs, in paragraph 17, the following conclusion was pleaded:

“By reason of the matters pleaded hereinabove, the [2017] Will was and still is invalid, and probate and the Grant ought not to have been granted.”

29.  This was followed by the prayer part of the SOC, whereby P claimed, inter alia, an order that the Grant be revoked under s 33(1) of the PAO.

30.  Thus, what is pleaded in paragraph 17 of the SOC that (1) “the [2017] Will was and still is invalid” and (2) “probate and Grant ought not to have been granted” and each is premised on “the matters pleaded hereinabove”, including paragraph 15 of the SOC.

31.  As Mr Li on behalf of P has pointed out, even though the words “probate of” the 2017 Will was omitted in paragraph 15 of the SOC, it is clear from paragraph 16 of the DCC that D did not misunderstand the issue raised in paragraph 15 of the SOC.  In paragraph 16 of the DCC, D has addressed this issue by specifically denying that the Grant should not be issued on the basis that the 3 Chinese Documents are only related to the disposition of real properties located in Mainland China and hence would not affect the issuance of the Grant in Hong Kong.

32.  In light of the foregoing, I am not persuaded by Mr To’s submission that the Issue is not part of P’s pleaded case.  

2^nd ground – “peripheral alternative” – no material saving of costs and time

33.  Mr To submitted that the Issue is just one of the 4 (and the last fall back) alternatives stated, and that the material issue in this case is whether the 2017 Will is valid, not whether the 3 Chinese Documents should be submitted in applying for the Grant.

34.  Mr To further submitted that if one looks at the matter practically, if the 2017 Will is not successfully challenged, D is entitled to the entire residuary estate to the exclusion of P, and it serves P no purpose in asking the Grant to be revoked, and in asking the Probate Registry to examine the 3 Chinese Documents when all of them are disposing of the estate consistently with those made under the 2017 Will.

35.  Mr To’s above submissions under this ground would appear to be in respect of the Court’s exercise of the Residual Discretion, and I will come back to this part of his submissions later.

The 3^rd – 5^th grounds

36.  D’s remaining grounds essentially are in relation to the 1^st Condition, namely whether the Issue is suitable for determination without a trial, and they are considered together.

37.  Mr To had submitted that proof of the 3 Chinese Documents (which D referred to as PRC Wills) was not required under paragraph 157 in the Guide to Non-Contentious Probate Practice issued by the Judiciary  (“Guide”), and that if such practice was disputed by P, then the factual dispute would not be an issue suitable to be determined by an O 14A application[20].  Paragraph 157 of the Guide states that any person can dispose of all his property all over the world by one will, and it is not uncommon for a deceased to execute a will to deal with his local property.  It is further stated that “Practitioner should be aware that the Hong Kong Court will not accept the proof of a foreign will disposing of property outside the jurisdiction of Hong Kong only”.  

38.  It is thus D’s evidence in his 2^nd affidavit that he was not required to disclose the 3 Chinese Documents to the Probate Registry of Hong Kong when he applied for the Grant, and similarly the Probate Registry of Hong Kong would not entertain any requests for investigation into the validity of the 3 Chinese Documents (or PRC Wills).

39.  The 3 Chinese Documents were said to be “foreign wills” in that they were signed by the Deceased in Mainland China, and thus outside Hong Kong.

40.  Mr Li referred the Court to section 24 of the Wills Ordinance Cap 30 and that the Hong Kong Court has jurisdiction to scrutinize the 3 Documents to see whether the 3 Chinese Documents conformed to the legal requirements in Hong Kong as the Deceased was domiciled in Hong Kong at the time of execution.

41.  However as pointed out by Mr To, s 24 of the Wills Ordinance is under Part III which concerns conflict of laws relating to testamentary dispositions and which provides the relevant rules to be applied when a foreign will is required to be considered in Hong Kong, and that it does not follow that all foreign wills are required to be considered by the Hong Kong Probate Registry, which will contradict the practice of the Registry of excluding foreign wills dealing with non-Hong Kong properties. 

42.  I agree with Mr To’s above submission.

43.  Mr Li had also referred to section 3(2) of the PAO, and submitted that the Hong Kong Court may still accept proof of a foreign will irrespective of whether or not it disposes of property within Hong Kong. In this respect, Mr Li referred to 2 cases, namely Re Wayland’s Estate [1951] 2 All ER 1041 and Lau Hau Chu v Ip Kam [2005] 4 HKLRD 64.   

44.  In Re Wayland’s Estate, a British testator domiciled in England made two wills in Brussels in accordance with the law of Belgium dealing only with his Belgian property and about 2 years later, he made a will in England which contained a revocation clause, but he went on to declare and the will was intended to deal with his estate in England only and later there was also an English codicil.  It was held that the revocation clause was only intended to revoke all former wills dealing with English property and was not intended to, and did not, revoke the Belgian wills and further under s 2(1) of the Administration of Justice Act 1932 [similar to s 3(2) of our PAO], the court had jurisdiction to make a grant of probate notwithstanding there was no property in England and probate could be granted of the Belgian will even though it disposed only of property in Belgium.  Pearce J then revoked the grant in respect of the English will and English codicil, and ordered a grant in respect of the two Belgian wills, the English will and the English codicil.

45.  The applicants in the above case were the executors who obtained a grant of probate of the English will and English codicil, and who then sought that the grant be revoked and a fresh grant be granted in respect of all 4 documents, namely the two Belgian wills, the English will and the English codicil. This was because if they did not obtain a grant of the Belgian wills in England, the amount of Belgian duty would largely exceed the amount of the Belgian assets, which, as Pearce J held, would be unfair to the estate.  

46.  As for Lau Hau Chu and Ip Kam & Another [2005] 4 HKLRD 64, in this case, the deceased X was the registered tenant of several public market stalls with the then Urban Council and P was his employee.  X executed a will appointing the plaintiff as executor and bequeathing to her all his estate in a particular market stall, but the will contained no provision disposing of X’s other assets.  When the plaintiff applied to “succeed” to the tenancy over the stall, she found out that X’s widow as administratrix had made a similar application and that as X’s widow was granted letter of administration over all X’s estate, the widow succeeded in obtaining a tenancy over the stall to her son.  In her affirmation for the grant, she stated that X died intestate.

47.  After a trial, C Chu J, as she then  was,  found that X’s widow was present at X’s execution of the will and that she was fully aware of the existence of the will by X and had therefore made a false and incorrect statement in her affirmation in support of the grant, and that she should have applied for a grant of letters of administration excepting the interests, rights, title and benefits of the stall, and further without the revocation, the plaintiff would be unable to obtain a grant of probate, albeit limited to the will.  Although it was argued on behalf of the widow that even if the will was valid, the court should refuse to admit the will to probate because it lacked any dispositive effect.  C Chu J, as she then was, had referred to s 3(2) of PAO and said that notwithstanding that X left no estate under the will, and that even if X could not validly dispose of any stall by the will, it did not follow automatically that the court could not grant probate of the will.  In the end, C Chu J ordered the grant of letters of administration to the widow to be revoked as she had found the widow was not entitled to a general grant of letters of administration, quite apart from the fact that the grant was obtained as a result of false and incorrect statement.

48.  It is not clear how the above case helps P since the general grant of letters of administration was clearly revoked as the widow was not entitled to the grant in any event.  The present circumstances are different.  There is no dispute that under s 3(2) of PAO, the Court has power of issuing grant with no local properties, but as set out in paragraph 5-03 in William, Mortimer & Sunnucks (21^st ed)  ‘this power [of issuing grant with no local properties] is only likely to be exercised in special circumstances’ and Re Wayland’s Estate was one of the cases cited in the footnote of that paragraph. 

49.  As submitted by Mr To, which I accept, in the present application, there has been no suggestion of any special circumstances in this case nor any injustice.

50.  The 3 Chinese Documents were handwritten and entitled “Will (1)”, “Will (2)” and “Will (3)” respectively.  All 3 Chinese Documents referred to properties situate in Guangdong Province, “Will (1)” was in relation to 2 shop spaces in a development in Sanxiang in Zhongshan, “Will (2)” was in relation to a 3½-storey high self-built building in Shenzhen, and “Will (3)” was in relation to a 5-storey high building in Shenzhen. 

51.  According to what was written in the 3 Chinese Documents, the Deceased and Madam Yeung were joint owners of all those properties, and that the Deceased inherited all those properties after Madam Yeung’s death and that the Deceased wanted to bequeath all those properties to D. D’s case was that he was not present when the 3 Chinese Documents were written.  It is not quite clear at this stage whether the Deceased had himself written out the 3 Chinese Documents, whether aided or unaided, but he appeared to have signed on the 3 Chinese Documents in the presence of 3 witnesses, whose signatures were illegible.  Against each of those 3 witnesses, there was a series of numbers which appeared to be some personal identification numbers.  All those who signed on each of the 3 Chinese Documents also seemed to have impressed his/her finger print thereon, including the Deceased.

52.  None of those 3 Chinese Documents contained any revocation of any previous wills, nor did it refer to the 2017 Will in Hong Kong, nor in fact to each of the other 2 of the 3 Chinese Documents.  Further, none of those 3 Chinese Documents appointed any executor for the estate/property.  They appeared to be independent and stand alone documents.  Although the 2 shop spaces in “Will (1)” were mentioned in the 2017 Will, the other properties in Shenzhen in “Will (2) and “Will (3)” were not.  Further, it was not clear whether the 3 Chinese Documents were purported to be wills made in accordance with the law in Mainland China, or whether they satisfied the requirements of the Mainland law on wills.

53.  The crux of P’s case is that, given the 3 Chinese Documents purported to be wills which post-dated the 2017 Will, D ought to have disclosed them in his application for the Grant and the failure to do so amounted to breach of D’s duty of full and frank disclosure in an ex parte application for the Grant.

54.  Mr Li submitted that it is not necessary for this Court to reach a definite view on the validity or the legal effect of the 3 Chinese Documents for the purpose of the present application.  Mr Li’s submission was only that the existence of the Chinese Documents should have been brought to the attention of the Probate Registry when D made the ex parte application for the Grant and that because they were not, then the Grant should be revoked.

55.  There is no dispute that, as a matter of fact, D did not disclose the Chinese Documents in the Executor’s Affidavit in his ex parte application for the Grant.  What he stated was “I believe the [2017 Will]  to contain the true and original last Will of the Deceased.”[21].  As said earlier, D’s evidence in his 2^nd affidavit is that he verily believes that the Hong Kong Court does not accept proof of a foreign will solely dealing with properties outside Hong Kong jurisdiction and therefore he was not required to disclose the 3 Chinese Documents to the Probate Registry.  He has said he stands by his Executor’s Affidavit that the application he was making was one for grant of probate in Hong Kong and the relevant last will referred to the 2017 Will.  D further pointed out that in the “Schedule of Assets and Liabilities” and the “Additional Schedule” that he did not include any properties or assets outside Hong Kong. 

56.  Mr To submitted that the 3 Chinese Documents only concerned the disposition of landed properties in the Mainland China, and they had nothing to do with properties in Hong Kong and that as such, they did not concern the Probate Registry when D applied for the Grant.  Thus, argued Mr To, D’s decision not to adduce irrelevant foreign wills does not constitute any material non-disclosure and that it is too simplistic a view to suggest that all wills, both relevant and irrelevant, should be indiscriminately adduced.

57.  I agree with Mr To that a non-disclosure must be material, and I do not accept that any non-disclosure would mean that the Grant would be automatically revoked.  The burden is on P to satisfy this Court that the Grant ought not have been granted or contains an error, by reason of there being the non-disclosure on D’s part of the 3 Chinese Documents.  Further, under section 33(1) of PAO, it is stated that where it appears to the Court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.  Thus, I am of the view that, even if it appears to this Court that the Grant ought not to have been granted, under section 33 (1), the Court still retains a discretion as to whether to call in the probate, and only if satisfied it would be revoked, to revoke the Grant.

58.  Mr Li had referred the Court to In the Estate of Ann Faithe Bryan, Deceased [1907] P at 125 in which it was held that a later will may revoke earlier testamentary documents although the earlier documents may have disposed of the whole estate of the deceased and although the last document contains no express clause for revocation and leave the residue undisposed of.  However, in that case, Sir George Barnes, President of the Probate Division, was of the opinion that on the face of the documents themselves the last will was a revocation of the earlier documents.

59.  The application for the Grant at the Probate Registry was an ex parte procedure in non-contentious cases.  Even if D had disclosed the 3 Chinese Documents in the Executor’s Affidavit, as D has said, and as set out above, on the face of the 3 Chinese Documents, there was no revocation of the 2017 Will or of any previous wills, nor on the face of the documents themselves that they were intended to revoke the 2017 Will, nor was there appointment of any executor, nor did the 3 Chinese Documents deal with any disposition of any properties in Hong Kong, or any residuary estate.

60.  By then P had not renewed the Caveat and the matter was proceeding on a non-contentious basis.  There was no sufficient evidence that the disclosure would have led to the Grant not being granted or ought not to have been granted.

61.  Mr To had also  referred to what was held by the Court of Final Appeal in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd [2003] 3 HKLRD 62 in which it was held, amongst other things that it is inappropriate to use the procedure under O 14A  if the issues of facts are interwoven with the legal issues to be determine[22]. 

62.  I am of the view that there are issues of facts interwoven in the question as to whether the D should have disclosed the 3 Chinese Documents and/or whether the Grant ought not to have been made without any investigation into the validity of the 3 Chinese Documents or their effect on the 2017 Will. 

63.  Having regard to all said above, I am not satisfied of the 1^st Condition have been met, namely that the Issue is one suitable for determination without a trial, or that this Court has all the necessary facts and matters in order to determine the Issue.   My decision in effect disposes of the Summons, but in the event that the Issue is one that is suitable for determination without a trial, I will go on to consider the 2^nd Condition.

The 2^nd Condition – whether a determination on the Issue would finally determine (subject to possible appeal) the entire cause or matter or any issue or claim therein 

64.  If the Issue is one that is suitable for determination without a trial, then a determination on the Issue would mean that the Grant is to be revoked on ground of non-disclosure.  The determination does not prevent D from re-applying for the Grant.

65.  In his 2^nd Affidavit filed on 12 April 2019[23], D indicated that he would re-apply for another grant of probate under the 2017 Will even if the Court decides to revoke the Grant[24].  Given the existence of the present action, as the matter has become contentious, the Probate Master has no jurisdiction to make a grant until the contention has been disposed of: s 6(1) of the PAO; Re Estate of Wan Sing Hon [2010] 4 HKLRD 621, at [12]-[14], per Lam J (as he then was)[25].

66.  It may well be that pending the determination on the legal effect of the 3 Chinese Documents and/or the validity of the 2017 Will, no grant will be made or issued by the Probate Registry, but in my view, the determination will not finally determine the real issue or claim in this respect, which is the validity of the 2017 Will. 

67.  In any event, even if both the 1^st and the 2^nd Conditions are satisfied, there remains the Residual Discretion under Step (2).

Residual Discretion 

68.  As said in Rockwin, quite how the Residual Discretion is to be exercised in any given case depends on the circumstances of the case. 

69.  The real issue or dominant feature in this action is whether the 2017 Will is valid, by reason of, as mentioned earlier, either the Deceased being of unsound mind or being lack of testamentary capacity at the time or execution, or the execution thereof was obtained by fraud, or by reason of the 3 Chinese Wills. 

70.  Mr To pointed out that the Issue is only a “peripheral alternative”, and that a determination on the Issue would not lead to a material saving of time and costs.  It was further argued on behalf of D that if P’s challenge to the 2017 Will should fail, D would be entitled to the entire residuary estate of the Deceased, and it would serve P no practical purpose to revoke the Grant, when the 3 Chinese Documents purport to dispose of the Deceased’s Mainland properties consistently with the 2017 Will.

71.  As mentioned earlier, the Court can take an overall view of the matter to see the context in which the question arises.  No matter what the Court’s determination on the Issue is, the parties are likely have to proceed to trial in order to determine the validity of the 2017 Will which is the dominant issue in this case.  I accept Mr To’s submission that any determination on the Issue will not result in a great saving of time or costs.

72.  Having considered the circumstances of the case and the present available evidence, I am not prepared to exercise the Residual Discretion in favour of P even if the 1^st and the 2^nd Conditions are satisfied.

Conclusion

73.  For the above reasons, I decline to determine the Issue under O 14A.  I dismiss P’s application.

74.  As for costs, although P fails to obtain a determination under O 14A, having considered the circumstances of this case, I am of the view that costs of the Summons should be in the cause.  This is an order nisi which shall be made final after 28 days.