TSO TAK LEE v. TSO CHUI YAN ADMINISTRATRIX OF THE ESTATE OF KAM YUK FUNG,DECEASED AND ANOTHER

HCAP 29/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 29 OF 2012

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DECISION
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THE APPLICATION

1.  This is the application of the defendants by this summons dated 5 August 2014 to seek leave of the Court to adduce expert evidence of two psychiatrists, Dr Chan Chung Mau and Dr Chen Char Nie in response to the expert evidence adduced by the plaintiff’s two psychiatrists Dr Chung See Yuen and Dr Tsang Fan Kwong respectively upon leave granted by this Court on 27 May 2014.

2.  The plaintiff opposes this application and the parties are legally represented.[1]

3.  In my Decision dated 27 May 2014, I had set out the relevant factual background for the plaintiff’s application.  The same should apply to this application too. The factual background is as follows.

THE FACTUAL BACKGROUND

4.  The plaintiff claims against the defendants, the 1^st defendant being the administratrix of the deceased’s estate and the 2^nd defendant being her husband, asking the Court to, amongst other things, revoke the Letters of Administration granted to the 1^st defendant relating to the deceased’s estate; account for the estate’s assets; delivery up of all the deceased’s estate to the plaintiff as the sole beneficiary under the deceased’s will.

5.  The plaintiff alleged in his Statement of Claim that the deceased had made her will on 12 November 2001 in the presence of two solicitors where she appointed the plaintiff as the sole executor and devised all her estate to the plaintiff alone.

6.  The 1^st defendant had falsely held out to all the other family members that the deceased had died intestate.  She had further applied to the court and obtained the Letters of Administration of the deceased’s estate.   She had also distributed the deceased’s estate to her advantage by, inter alia, assigning the property in Russell Street to her husband, the 2^nd defendant by an Assignment dated 20 October 2008.

7.  There had been oral agreement between the plaintiff and the defendants that the defendants would return the properties in the estate to the plaintiff, which the defendants had failed to do.

8.  The defendants do not dispute the existence of the will, but they say that the will is invalid and void by reason that the deceased was mentally incapacitated when she executed the will on 12 November 2001, relying upon the findings of two registered psychiatrists, Dr. Wong Sze-man Queenie and Dr. Miao Yin King, both of Department of Psychiatry, Pamela Youde Nethersole Eastern Hospital.

9.  The 1^st defendant further says that she had shown the will to the family members in the 1^st meeting held in early 2004 where the plaintiff had told the family members to ignore it.  The plaintiff had denied this allegation in his Reply at paragraph 6.

DISCUSSION

10.  The relevant legal principles are set out in my previous Decision. I shall not repeat them in this Decision.

11.  The plaintiff’s grounds of objections are:

a. This is a late application without explanation;

b. The defendants have already relied upon two medical reports in support of their challenge upon the mental capacity of the deceased when she executed her will; and

c. The defendants’ suggestion that Dr. Chung & Dr. Tsang are highly partial witnesses is not justified as both these doctors are experienced professionals who are well aware of their duties.

12.  There is no dispute that this application is out of time and the defendants have no good explanation for the delay.  The defendants only submit that leave for adducing the expert evidence will not be prejudicial to the plaintiff.  See paragraph 9 of the written submissions.

13.  This application is considered against the factual background that no trial date has been fixed and the delay will cause no real prejudice to the plaintiff that cannot be compensated by costs.

14.  The defendants submit that the proposed expert evidence should be allowed because they can assist the trial judge to determine the issue of testamentary capacity of the deceased at the time of execution of her will because:

a. Dr Chan’s report is a psychiatric report that he opines that the deceased highly unlikely had testamentary capacity, based on his finding that the deceased was highly unlikely to be free from an abnormal state of mind that might distort feelings or judgements relevant to making her will.

b. Dr Chen’s report shows that:

(i) The deceased suffered from a delusional disorder, and for which she did not have insight into her illness and did not know the need to have regular treatment,

(ii) As a result of her delusional disorder, poor insight and inadequate medical follow-up and treatment, she did not reach a remission of her delusional symptoms, which remained even after discharge from hospital,

(iii) The delusional disorder clouded her decision in making her will on 12 November 2001, which was unlikely to pass the legal test for testamentary capacity.  Therefore she could not be considered to have testamentary capacity at the time of executing her will. This was especially so because there was no medical expert to support the claim of the two witnesses (solicitor / staff present during execution of her will) that she was mentally stable,

(iv) Following regular medication during and after third hospital admission, her mental condition became stable and she had stayed in OAH uneventfully until the time of her death.[2]

15.  Although the plaintiff submits that the defendants had already relied upon the other two medical experts, whom the defendants now say that they are not going to call them as witnesses at trial, it is apparent that those expert evidence was relied upon to set up a prima facie case against the validity of the will.  Now the defendants ask for leave to adduce expert evidence in response to those submitted by the plaintiff. The defendants submit that it is only fair that they be given an opportunity to challenge the plaintiff’s experts at trial.  The plaintiff submits that Dr. Chan’s expert report relied heavily on the facts given by Madam Tso as can be seen from paragraph 5 to paragraph 31 of his report.  These facts are challenged by the plaintiff.  This is the fact that the trial judge will have to make a decision after cross-examination by the plaintiff’s counsel.  If the judge finds against the facts of Madam Tso, Dr. Chan’s report will be dealt with accordingly and his opinion may not be accepted by the judge.  This is a matter for the trial judge.

16.  In Wu Chi Man v Moe Fang (unreported, HCA607/2010 G. Lam J., 26 February 2013), the learned judge refused the plaintiff’s application to adduce an accountant’s expert report because the plaintiff had not indicated that there would be expert evidence in the Listing Questionnaire and the application was made 3 months before trial, which the learned judge held to be inordinate delay on the plaintiff’s part and there was no explanation from the plaintiff for the delay. See paragraph 28 of the Decision.

17.  This case has to be differentiated from the above authority because the defendants had confirmed that there would be expert evidence and that there has not been trial date for the matter.

18.  The burden of proof lies upon the defendants to challenge the validity of the will.  “The issue must be resolved as a matter of evidence in accordance with the usual rules relating to burden and standard of proof, and not by application of any presumption.” as per Ribeiro PJ. In Nina Kung alias Nina T.H. Wang v Wang Din Shin (2005) 8 HKCFAR 387 at §201.

19.  It is usual practice that the party who has to prove his case will have the last chance of reply to the opposition made by the opposing party, same as the affidavit evidence for the interlocutory proceedings and the trial.

20.  O.1A, r. 2(2) of the RHC provides that the Court must bear in mind that the primary aim in exercising the powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

21.  Taking into account of the factors under O.2, r.5 of the RHC, it is just and fair  that the defendants be granted leave as requested to adduce the expert evidence in response to the expert evidence adduced by the plaintiff in order to assist the trial judge to reach a fair resolution of the disputes between the parties.  I grant the leave as requested.

COSTS AND ORDER

22.  As to the costs of this application, the plaintiff asks for costs despite leave being granted by this Court to the defendants to adduce the expert evidence because the defendants’ application is a late application without explanation.  The defendants submit that they had succeeded in the application and there is no reason for the plaintiff to oppose the application.  The defendants had approached Dr. Wong and Dr. Miao.  Dr. Wong was unwilling to give evidence whilst Dr. Miao had left the government as was nowhere to be found.  However, those are not good reasons for the late application.  In the circumstances, the fair order for costs for this application, including the costs reserved should be costs in the cause with counsel’s certificates as I find that the contents of the expert evidence are relevant for the trial, and so I order.

23.  I shall now make an order in terms as follows:

a. Leave be granted to the defendants in terms of paragraph 1 of the summons dated 5 August 2014;

b. Costs of the application be as per §22 above.