TAI PUI SHAN CHRISTABEL DONNA v. HO YEE MING

HCAP 1/2016

[2019] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 1 OF 2016

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JUDGMENT

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INTRODUCTION

1.  The principal issue which arises for determination in this probate action is whether a will executed by the testator had been revoked prior to his death.

BACKGROUND FACTS

(i)     The Deceased and his family

2.  Mr Tai Ying Tong, deceased (“the Deceased”) and Madam Ho Yee Ming (“Madam Ho”, the Defendant) were husband and wife.  They married in Hong Kong in 1963 and had 3 children, namely:

(1)     Tai Pui Shan Christabel Donna (“Donna”), the eldest daughter and the Plaintiff in this action, born in 1964;

(2)     Tai Pui Yin Richard (“Richard”), the elder son, born in 1965; and

(3)     Tai Pui Wah Christopher (“Christopher”), the younger son, born in 1969.

3.  The Deceased and Madam Ho’s relationship turned bad at some point after their marriage.  In about 1975 they started to occupy separate beds, and in about 1989 Madam Ho moved out of the matrimonial home and started to live in the Yuen Long Property (more particularly described in paragraph 8 below).  Nevertheless, they maintained their marriage relationship until the Deceased passed away in 2014.

(ii)     The WLC Property

4.  The Deceased was a civil servant.  He used to work in the Lands Department until his retirement.  As a civil servant, he joined and became a member of Wah Yuen Chuen Co-operative Building Society, Limited (“the Society”), and was allocated a residential unit, originally as licensee, known as Flat B, 8/F, Block 3 (Wai Lai Court), Wah Yuen Chuen, No 12 Wah King Hill Road, Kwai Chung, New Territories (“the WLC Property”).

5.  On 9 March 1996, the WLC Property was formally assigned to the Deceased.

6.  The Deceased and his family moved into the WLC Property in about late 1970s/early 1980s.  Later, Christopher and Madam Ho left, but the Deceased, Donna and Richard continued to live together in the WLC Property for many years until Richard moved out in around 2006.  Since about late 2007, the Deceased had been staying in a nursing home in Tuen Mun until his death, and Donna became the sole occupant of the WLC Property.

7.  On 20 March 2013, the Deceased appointed Richard as his attorney to sell the WLC Property.  It had not, however, been sold by the time that the Deceased passed away on 17 March 2014.

(iii)     The Yuen Long Property

8.  On 30 January 1989, Madam Ho and Donna purchased and became the joint tenants of a property known as Flat E, 8/F, Far East Consortium Yuen Long Building, No 29 Yuen Long On Lok Road, Yuen Long, New Territories (“the Yuen Long Property”).  It is not in dispute that Donna only contributed to one or two mortgage repayments at the beginning, and all subsequent mortgage repayments were made by Madam Ho.

9.  On 9 December 2015, Madam Ho executed a Notice of Severance to sever her joint tenancy with Donna in the Yuen Long Property after the commencement of this probate action by Donna on 30 November 2015.

(iv)     The Kwai Chung Property

10.  On 7 October 1996, the Deceased, Christopher and his wife (Iris Chan) purchased and became the joint tenants of a property known as Flat 4, 1/F, Block B, Yuet Lai Court, No 53 Lai Cho Road, Kwai Chung, New Territories (“the Kwai Chung Property”).

11.  On 20 March 2013, the Deceased appointed Christopher as his attorney to sell the Kwai Chung Property.  On 15 August 2013, the Kwai Chung Property was sold for HK$3 million.

(v)     The Will and Letters of Administration

12.  On 18 January 2005, the Deceased executed a will (“the Will”), under which: (i) Madam Ho was named as the sole Executrix of the Will, and (ii) the Deceased left his entire estate, after payment of all debts and funeral and testamentary expenses, to Madam Ho, Richard and Donna for their use and benefit as tenants in common in equal shares.

13.  According to Donna, on the date of the execution of the Will, the Deceased gave a copy to her and told her that he would give the original Will to Richard, who at that time was living with the Deceased and Donna at WLC Property.  Donna also said at the trial, although not in her previous affirmations or witness statement filed in this action, that the Deceased told her that he would ask Richard to pass the original Will to Madam Ho.

14.  Both Richard and Madam Ho gave evidence that they never received or saw the original Will, whether before or after the death of the Deceased.  Their evidence is to the effect that they first saw a copy of the Will when Donna sent it to Madam Ho by registered post after the death of the Deceased.

15.  I accept the evidence of Richard and Madam Ho that the Deceased never gave the original Will to either of them.  Donna’s belief that the original Will was with Richard is based on what the Deceased allegedly told her.  Even if one accepts Donna’s evidence, that would not amount to evidence that the Deceased actually did what he told Donna.  More importantly, under the Will, Richard stands to receive one-third of the Deceased’s residuary estate, whereas under an intestacy situation, Richard’s share in the Deceased’s estate would be considerably smaller (less than one sixth, taking into account the statutory payment to Madam Ho as the surviving spouse of the Deceased).  It would be in Richard’s interest to produce and prove the Will if it is in his possession.  I see no reason why he would hide the existence of the Will.

16.  The Deceased passed away on 17 March 2014. After the death of the Deceased, Donna searched the personal belongings of the Deceased at the WLC Property, and Richard and Christopher did likewise at the nursing home, but could not find the Will or any other testamentary papers of the Deceased.  The Deceased used to keep a safe deposit box at Shanghai Commercial Bank, but it was closed in 2008.

17.  On 16 December 2014, the court granted to Madam Ho the letters of administration of the Deceased’s estate (“the Letters of Administration”), she, Richard and Christopher having apparently been advised by their solicitors that a photocopy of the Will was not valid for the purpose of probate.  As shown in the Schedule of Assets and Liabilities of the Deceased attached to the Letters of Administration, the only asset which the Deceased left on his death was the WLC Property.

(vi)     The probate action

18.  On 30 November 2015, the Plaintiff commenced the present action seeking a revocation of the grant of the Letters of Administration on the ground the Deceased had left a duly executed Will on his death and did not die intestate.

DUE EXECUTION OF THE WILL

19.  Mr Roderick Yeung Kam Yuen, the solicitor who prepared the Will for the Deceased and who witnessed, together with his clerk (Ms Amy Mak), the Deceased’s execution of the same, was subpoenaed by Donna to give evidence to prove the due execution of the Will.  Mr Yeung was formerly a civil servant, and later became a legal consultant of the Society. In about 2005, he was instructed to prepare wills for the owners/occupiers of Wah Yuen Chuen and, according to Donna, a “Will production exercise” took place at the common hall of Wah Yuen Chuen.

20.  Mr Yeung gave evidence about taking instructions from the Deceased for the preparation of the Will on 11 January 2005 (that date was taken from an official receipt issued by his firm), and subsequently attending to the execution of the Will by the Deceased on 18 January 2005.  He said it was his practice, and he followed that practice in the present case, to ask the testator whether he had executed any will before, what assets he had, who he wished to be the executor and beneficiaries, and how he wished his estate to be distributed.  He would explain the functions and duties of the executor, and the effect of the will, including the fact that it would supersede all previous wills, if any, executed by the testator.  Before execution, he would explain the contents of the will to the testator and how his estate would be distributed after his death, and ask whether the testator understood the contents of the will.  Mr Yeung also said he would note whether the testator had, or appeared to have, testamentary capacity.  He said that the general health conditions of the Deceased (who would be 74 years old at that time) appeared to be quite good, and he had no reason to doubt or question the mental conditions of the Deceased.

21.  Mr Yeung is unable to produce the original Will at the trial because he gave it to the Deceased for his safe custody after execution.  He is however, able to produce an unexecuted form of the Will from his computer which is, in all aspects, the same as the photocopy of the Will produced by the Plaintiff save that it does not bear the signature of the Deceased as testator, or the signatures of himself and Ms Amy Mak (above their name chops) as witnesses to the Deceased’s execution of the same.

22.  Since Mr Chiu (counsel for Madam Ho) made it clear that he did not challenge Mr Yeung’s credibility or reliability, and that he had no positive case to advance in relation to the validity of the Will, I do not propose to further recite the evidence of Mr Yeung in this judgment.  I accept his evidence in its entirety, and is satisfied on the evidence that (i) there was due execution of the Will by the Deceased, (ii) the Deceased was of testamentary capacity at the time of the execution of the Will, there being no medical evidence to the contrary, and (iii) the Deceased knew and approved of the contents of the Will.  In short, subject to the issue of revocation (to be discussed below), the Will was a valid will of the Deceased.

REVOCATION OF THE WILL

23.  There is no direct evidence that the Deceased revoked the Will during his lifetime.  However, it is clear on the evidence that the original Will was given by Mr Yeung to the Deceased on the date of its execution on 18 January 2005, and it could not be found amongst his personal belongings after his death.  Further, as earlier mentioned, I find that the Deceased never gave the original Will to Richard or Madam Ho.

24.  On behalf of Madam Ho, Mr Chiu argues that the presumption of revocation applies.  In Welch v Philips (1836) 1 Moo PC 299, Parke B explained the operation and effect of the presumption as follows:

“Now the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.

The onus of proof of such circumstances, is undoubtedly on the party propounding the Will.”

25.  The same principle was stated by Lam J (as he then was) in Re Estate of Lie Ka Khie [2009] 2 HKLRD 115, at paragraph 21:

“Whether a will has been revoked is a question of fact. Usually, if it is established that a deceased had made a will, the party who seeks to contend that he died intestate bears the burden of showing that the will had been revoked. However, in cases where a will was in the custody of a testator and it cannot be found at his death, there is a rebuttable presumption that the testator himself destroyed the will for the purpose of revoking it. That presumption can be rebutted and the strength of the presumption varies according to the circumstances of the case. Amongst other things, the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death and the contents of the will are relevant matters to be taken into account. Since the ultimate question is whether the will has been revoked, the court must also examine whether the testator had any cause to revoke the will and other factors supporting as well as those pointing against a case of revocation. The burden is on the party propounding the will to prove that the will had not been revoked.”

26.  It is important to emphasize that the presumption of revocation is a rebuttable presumption of fact.  The presumption should best be regarded as a pointer or indicator of the correct inference to be drawn.  Ultimately, the court’s task is to determine, on the totality of the facts found to be established, whether, on the balance of probabilities, the missing will had been destroyed by the testator for the purpose of revocation prior to his death.  In Re Estate of Lie Ka Khie, Lam J further stated as follows:

“[23] Since we are dealing with a question of fact and the presumption is a rebuttable one, it should also be mentioned that very often the case can be resolved in a manner other than by resorting to the question of burden of proof. As stated at para.14-29 of Williams, Mortimer & Sunnuck, Executors, Administrators and Probate 19^th Edn (2008),

‘It seldom happens that cases, which set out upon legal presumptions, require to be decided on the mere presumptions. The general circumstances of the case usually lead to a tolerably satisfactory conclusion of the real fact, either confirming or repelling the presumption. The presumptions are to be treated as indications of inferences to be drawn and not as rigid rules.’

[24] Thus in Re Yule (1965) 109 Sol J 317, Wrangham J said,

‘It was clear from the older authorities that those presumptions were not intended to be regarded as rigid statutory rules, when they would produce absurd results, but as indications of the inferences which would always be drawn by the court from a given state of evidence. The court would approach the question by considering what was the most probable explanation of the absence of the will on the testator’s death.’

[25]     That approach has been applied subsequently by Cumming-Bruce LJ in Dickson v Dickson (unreported but available on Lexis) 18 July 1984 and more recently by Judge Kay QC in Nicholls v Hudson [2007] WTLR 341.”

27.  In the present case, it may at first sight seem surprising that the Deceased would appoint Madam Ho as the executrix of the Will and give her one-third of his residuary estate, bearing in mind that they had not been in a harmonious matrimonial relationship since around 1975 and had been living under different roofs since about 1989.  According to Donna, after Madam Ho left the Deceased’s home, she never returned and never contacted the Deceased afterwards.  The Deceased did not know where Madam Ho lived, and Madam Ho never visited the Deceased at the Yan Oi nursing home or Kwai Chung Hospital (where the Deceased was hospitalized for a while in 2007). There is evidence that the Deceased and Madam Ho did see each other on some special occasions, such as marriage banquets, but they did not talk to each other.  Donna said that “[i]t would be testator thought … the Defendant might return to testator’s home after testator died, therefore Will of Tai Ying Tong included the Defendant” (see paragraph 6 of Donna’s witness statement dated 17 May 2017).  This statement appears to be Donna’s speculation.  Be that as it may, it seems clear that in 2005, the Deceased still had sufficient trust and confidence in Madam Ho to appoint her as the executrix of the Will, and still care for her well-being sufficiently to give one-third of his residuary estate to her in the Will.  The estranged relationship between the Deceased and Madam Ho cannot, I consider, be regarded as a circumstance to support an inference that the Deceased had revoked the Will prior to his death.

28.  There are, however, other facts which would support such an inference to be drawn.

29.  First, there is evidence that the Deceased and Donna did not get on well, and they often had heated arguments with each other prior to the Deceased moving to the nursing home in 2007, apparently because of the Deceased’s heavy drinking habits.  This could explain why the Deceased no longer wanted to give Donna one-third of his residuary estate.

30.  Second, that the Deceased and Donna’s relationship had turned bad is supported by the fact that the Deceased issued a written notice, by email, dated 21 March 2013 to Donna to ask her to leave the WLC Property before 30 April 2013, and threatened to take legal action against her should she fail to do so.  According to the evidence of Christopher, which I accept, that email was sent by him upon the instruction and on behalf of the Deceased because Donna had failed to pay the management fees and other charges in respect of the WLC Property and because the Deceased wished to sell the WLC Property.

31.  Third, it is clear that the Deceased had decided to sell the WLC Property by March 2013.  Once that property was sold, the Deceased would have no other asset of value, and the Will would no longer have any useful purpose to serve.  This could explain why the Deceased would revoke the Will.  I should add that the WLC Property was not sold prior to the death of the Deceased because, apparently, Donna refused to move out of the WLC Property (see paragraph 6 of Richard’s witness statement).

32.  Fourth, I accept the evidence of Richard and Christopher that the Deceased never told them about the existence of the Will during his lifetime.  While the Deceased’s relationship with Madam Ho was not good, he apparently maintained good relationship with Richard and Christopher, as shown by the fact he appointed them as his attorneys to sell the WLC Property and the Kwai Chung Property respectively in March 2013.  There seems no good reason why the Deceased would keep the Will a secret from Richard and Christopher if he considered the Will to be still valid and effective.

33.  In all, I find as a fact that the Will had been revoked by the Deceased prior to his death.

34.  For the sake of completeness, I grant leave to Madam Ho to amend the Defence in the form of the draft Amended Defence submitted by Mr Chiu to the court on the first day of the trial.  The proposed amendment formally raises the issue of revocation of the Will, by paragraph 3A of the draft Amended Defence.  It is clear that Donna has known for a long time that Madam Ho relies on the defence of revocation of the Will, as shown by the fact that larges parts of her affirmation dated 12 January 2017 and her witness statement dated 17 May 2017 were devoted to the issue of revocation.  That Madam Ho’s case is that the Will had been destroyed was clearly raised in the witness statements of Richard and Christopher.  There is no suggestion that Donna has any further evidence to adduce on the issue of revocation which she has not adduced in court, or that the amendment would lead to any extra costs being incurred by her.  I consider it to be just and fair to allow the proposed amendment, even at this late stage.

DISPOSITION

35.  The Plaintiff’s action against the Defendant is dismissed, with costs to the Defendant to be taxed if not agreed.