WEI PIH STELLA AND ANOTHER v. CHOW SHUN YUNG

CAVEAT NO. HCCA 780/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

CAVEAT NO. HCCA 780 OF 1998

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D E C I S I O N

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1. This is the appeal against the order of Master Ho dated 13 March 2000 whereby he dismissed the Appellant's summons dated 21 October 1998. The background facts are as follows.

2. The deceased passed away in Shanghai on 13 November 1997 intestate leaving behind assets in Hong Kong and Shanghai.

3. The Appellant claims to be the lawful and natural son of the deceased. He admits that the 2nd Caveator (the 2nd Respondent in this appeal) is his lawful and natural sister. The 1st Caveator (the 1st Respondent in this appeal) claims to be the lawful and natural daughter of the deceased but this is disputed by the Appellant.

4. On 26 July 1998, the Appellant filed his application for Grant of Letters of Administration to himself in Application No. HAG 4902/1998 as one of the persons entitled to the Grant.

5. On 24 September 1998, the 1st and 2nd Caveators filed their Caveat herein. As will be set out below, it is disputed if the Caveat was filed in accordance with Rule 44(2) of the Non-Contentious Probate Rules, Cap.10.

6. On 12 October 1998, the Appellant filed a warning to the said Caveat pursuant to Rule 44(7) of Cap.10.

7. On 17 October 1998, the 2 Caveators entered an appearance to the said warning. Again, it is disputed whether this was in accordance with Rule 44(9) or (10) of Cap.10.

8. On 21 October 1998, the Appellant issued a summons herein. The summons itself does not state the relief asked for. However, the Appellant filed an affirmation apparently in support of the summons setting forth various grounds. Based on those grounds, the Appellant argued in effect that the caveat should cease to have effect. As stated earlier, on 13 March 2000, this summons was dismissed by Master Ho.

9. I consider that the Appellant's summons is irregular for at least 2 reasons. One, the summons itself fails to set out the relief asked for. Two, the relief asked for in the Appellant's affirmation is not provided for in the Non-Contentious Probate Rules or any statute or otherwise known to law. The only provision in Cap.10 which enables a similar application to be made is Rule 44(11) but that Rule only applies to a case where Rule 44(4) applies and the caveator has not entered an appearance (whether under Rule 44(9) or (10)). As will be set out below, I agree with the learned Master that Rule 44(4) does not apply to this case.

10. Mr Tam for the Appellant now advances 3 main grounds in support of this appeal. I shall deal with the 3 main grounds in the paragraphs below.

11. The first ground is that the learned Master erred in finding that Rule 44(4) is inapplicable. Rule 44(4) provides:

"Except as otherwise provided by this rule, a caveat shall remain in force for 6 months from the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveat"

12. The exceptions provided for in Rule 44(4) can be found in Rules 44(12)(a) to (c) which read:-

"Unless the Registrar otherwise directs -

(a) Any caveat in force at the commencement of proceedings by way of citation or motion shall .... remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the court in such proceedings ....

(b) Any caveat in respect of which an appearance to warning has been entered shall remain in force until the commencement of a probate action.

(c) The commencement of a probate action shall ..."

13. Rule 44(12)(b) clearly applies to this case. As accepted by the Appellant (see p.2 of Mr Tam's skeleton submission and pp.28-31 of the Appellant's bundle of documents) the 2 Caveators have entered an appearance to the Appellant's warning on 17 October 1998.

14. For this reason, I agree with the Master that this case is an exception to Rule 44(4).

15. The 2nd ground relied on by Mr Tam is that the form of the Caveat filed by the 2 Caveators is defective. Mr Tam refers to Tristram and Coote's Probate Practice (1995) 28th Ed., para. 23.19 (p.536) in support:-

"23.19 If two or more persons wish to oppose the issue of a grant of representation, separate caveats must be entered: the names of more than one caveator may not appear in any caveat."

16. Mr Tam contends that only one Caveat was entered by the 2 Caveators and this constitutes a defect. He submits that the consequence of this defect is that the Caveat becomes invalid. However, Mr Tam is unable to refer to any authority in support of this submission. I understand Mr Wong for the Caveators is arguing that the caveat complies with the rules but I am prepared to deal with this appeal assuming that Mr Tam is correct in saying that it does not so comply. Non-compliance with statutory provisions, rules of law or practice is certainly not something to be encouraged. However, it does not follow that whenever there is a non-compliance with practice or procedure, or, as in this case, a non-compliance with the specified form, an invalidity automatically entails. The caveat, the warning and the appearance to a warning are documents intended to give notice to parties concerned with the grant in question. In Tristram and Coote, a caveat is described as "a notice in writing lodged with the [Probate Registry] by a person wishing to show cause against the sealing of a grant ..." (para. 23.01 at p.533). The purpose of a caveat is also set out in Tristram and Coote

"The following are some of the purposes for which a caveat may be entered:-

(a) to give time to the caveator to make enquires and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant;

(b) to give any person interested in the estate an opportunity of bringing any action arising in respect of the grant before the court on summons;

(c) as a step preliminary to a probate action or to the issuing of a citation." (para. 23.04 at pp.533-534)

The form specified in Rule 44(2) is a form specified in the Non-Contentious Probate Rules. The words "Non-Contentious" are the emphasis. Even in contentious matters, a failure to comply with the requirements of the rules, with regard to (among other things) forms, will only be treated as an irregularity and will not nullify the proceedings: see R.H.C. O.2 r.1(1).

17. For the above reasons, I disagree with Mr Tam's submission that the Caveat is invalid.

18. Mr Tam further argues that the appearance entered by the 2 Caveators failed to comply with Rule 44(9) or (10) in not disclosing therein any conflicting interest contrary to the Appellant's (under Rule 44(9)) or showing cause against the sealing of a grant to the Appellant (under Rule 44(10)). Mr Tam again argues that the appearance is invalid. For the reasons given above in relation to the validity of the Caveat, I also disagree with Mr Tam's argument regarding the alleged invalidity of the appearance to the warning.

19. The 3rd ground advanced by Mr Tam is that the learned Master was wrong in relying on Re: Ng Fook (deceased) [1998] 1 HKC 489. I understand the part of the judgment in question appears at pp.493H to 494A of the Judgment:-

"Non-Contentious Probate business is defined in section 2 of the Probate and Administration Ordinance (Cap.10) as meaning " ... the business of lodging caveats against the grant of probate or administration". But once the executor decided to attack the caveat and took the unusual and for me the bizzare step of applying to strike out the caveat on the controversial ground that the caveator is not a widow and therefore had no valid interest, the proceedings became in my view, contentious business in every sense of adverse litigation between contending parties. It is to the substance of the dispute that one looks to see if the business is contentious or non-contentious rather than whether a step is taken purportedly under any of the rules in the Non-Contentious Probate Rules such as Rule 60 relied on by Mr Pau."

For the reasons given in that passage, the learned Judge came to the view that the Rules of the High Court can apply to the application by the caveator to set aside the order given therein.

20. Mr Tam contends that the facts of the Ng Fook case are different from the present and therefore it is distinguishable. While that contention may have force in some other context, the part of the judgment quoted above is a proposition of legal principle which appears to me was intended by Waung J to have general application. Mr Tam does not argue that the proposition is wrong in principle. As I was able to decide on the validity of the caveat and the appearance to the warning without the need to rely on the Ng Fook case, it is strictly unnecessary to consider whether that part of the Judgment is correct, or whether the Master was correct in relying on it. However, if it had been necessary to do so, I would have decided in the Caveators' favour on both points.

21. Mr Tam also raises an argument in relation to R.H.C. O.76. By reason that I was able to decide on this appeal on the above grounds, I do not find it necessary to deal with this argument.

22. For the above reasons, this appeal is dismissed.

23. Having dealt with the appeal, I should perhaps say something about Rule 44 with the view of assisting the further conduct of this case. It appears that if an appearance is entered to a warning under either Rule 44(9) or (10), either a summons for directions should be taken out pursuant to Rule 44(10) or a probate action should be commenced. Any dispute between the caveator and the person giving the warning can then be dealt with therein: see Tristram and Coote, para.23.05 at p.534.