CHEN CHERYL DEANNA FORMERLY KNOWN AS CHERYL DEANNA CHEN OR CHEN MEI YIN DEANNA OR CHEN MEI YIN CHERYL v. CHEN PAK YIN STELLA

HCAP 16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 16 OF 2008

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J U D G M E N T

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1.  The plaintiff (“P”) and the defendant (“D”) are sisters.  P issued the probate action herein 6 years ago to challenge the validity of the alleged will of their deceased father, and also for her to be appointed the administratrix of their father’s estate.

2.  In  February 2014 D issued a summons seeking orders that, among other things, P’s present action be discontinued or dismissed,  and that an independent accountant be appointed the administrator for the estate of their deceased father (“Deceased”), and for letters of administration of the Deceased’s estate  (with will annexed)  be granted to the independent accountant (“Dismissal Summons”).

3.  After D issued the Dismissal Summons, and about two weeks prior to the first hearing on 18 June 2014 (“1^st Hearing”), P suddenly issued a summons on 5 June 2014 seeking a “a declaration by consent of the court for re-amended statement of claim for HCAP 16 of 2008and for leave to file in court (sic)” (“1^st Re-Amendment Summons”)[1]. This was subsequently adjourned by Master Ho to be dealt with by this court.  P then filed another summons on 13 June 2014 asking for leave to re-amend the statement of claim (“2^nd Re-Amendment Summons”). Both her summonses in fact sought the same order, namely leave to re-amend her statement of claim. 

4.  Subsequently, at the 1^st Hearing, this court gave leave for P to withdraw her 1^st Re-Amendment Summons.  The Dismissal Summons and the 2^nd Re-Amendment Summons were then adjourned to a hearing on 10 September 2014 for substantive arguments (“2^nd Hearing”).  This court also gave directions for the filing of further affirmations.  P and D were each given leave to file an opposing affirmation to the other’s application, and leave to file a reply afterwards.  It was specifically stated in the orders made at the 2^nd Hearing that save as ordered, there were to be no further affirmations filed by either party unless with leave of court.

5.  About 3 weeks prior to the 2^nd Hearing, P filed another summons on 21 August 2014, to seek leave to file an alleged “lost handwritten will” of the Deceased (“Leave Summons”).  

6.  The Leave Summons was fixed before the Master for hearing on 28 August 2014 and was subsequently adjourned to this court to be dealt with at the 2^nd Hearing.  At the end of the 2^nd Hearing, I have adjourned the Leave Summons sine die with liberty to restore, if necessary, after the determination of the other summonses.

7.  Notwithstanding the orders I made at the 1^st Hearing, thereafter, and prior to the 2^nd Hearing, P had filed numerous affirmations, no less than 10, and without leave of court.  I had re-iterated to P at the 2^nd Hearing that she would need leave of court to file any additional affirmations in support of the summonses before this court.

8.  The day after the 2^nd Hearing, P issued another summons on 11 September 2014 to seek retrospective leave to file an affirmation filed on 8 September 2014.  This summons was heard on 29 November 2014, and in the end leave was given.

9.  For the 2^nd Hearing in relation to the Dismissal Summons and the 2^nd Re-Amendment Summons, P herself had lodged 3 paginated of hearing bundles AB 1- 3.  D had lodged one hearing bundle.  These were all lodged on 3 September 2014.  I shall only consider the evidence contained in the affirmations in those paginated bundles, and also the one filed on 8 September 2014 of which leave had been given.

Background

10.  The Deceased, a retired civil servant, died at Queen Elizabeth Hospital on 22 March 2005 aged 81 years.  He had three  daughters and one son, and they are in order of their ages:

(i) D, the eldest daughter

(ii) Chen Chak Man Edward

(iii) P

(iv) Chen Bo Yin Margaret also known as Wendy Krumenacker (“Margaret”)

(collectively “4 Children”)

11.  The wife of the Deceased, or the mother of P and D, Madam Lee Shiu-Han (“Madam Lee”) predeceased the Deceased in about April 2003.

12.  According to D, the Deceased made a will dated 24 January 2005 prepared by a firm of solicitors Messrs Edward Lai & Co (“2005 Will”).  Under the 2005 Will, D was appointed the sole executrix and trustee of the Deceased’s estate.  The Deceased gave his residuary estate both real and personal of whatever nature and wherever situated to the 4 Children, to be divided between them in equal shares.

13.  On the same day that he made the 2005 Will, 24 January 2005, the Deceased also executed an enduring power of attorney (“Enduring P/A”) nominating and appointing D as his true and lawful attorney.

14.  It was P’s case that the Deceased was not of sound mind, memory or understanding at the time of the making of the 2005 Will and the Enduring P/A. 

15.  It was further P’s case that, unbeknown to her and her son (“Andrew”), D relying on the Enduring P/A effected change of the beneficiaries of an insurance policy no 382257225 taken out by the Deceased with Sun Life Financial and issued on 24 August 2004 (“Insurance Policy”) to be that of the 4 Children in equal shares.  Prior to the change, the beneficiaries were only P, Andrew, and Edward in equal shares.  According to P, the Deceased had taken out and paid HK$3m for the Insurance Policy, in order to provide for,among other things, Andrew’s and P’s future medical and miscellaneous expenses, as due to complications at birth in 1993, Andrew had suffered serious illness and now has disability.

16.  P issued the writ in the present probate action in October 2008 to challenge the validity of the 2005 Will.

17.  Subsequently, in 12 January 2011, P, and Andrew suing by his mother and next friend P, instituted another action in the High Court against D (“HCA 59/2011”) seeking, among other things, a declaration that the Enduring P/A was invalid and that the acts performed by D relying on the Enduring P/A were invalid.

18.  P had in February 2011 applied for the present action to be consolidated with HCA 59/2011, but no order was made at that time.  Eventually, on 7 September 2011, Mr Registrar Lung ordered that the present action be tried together with HCA 59/2011 before the same judge and in the order to be determined by the trial judge (“07.09.11 Order”).

19.  Thereafter, both actions dragged on due to various applications and disputes between the parties.

20.  Mr Registrar Lung had as early as in July 2010 given leave to the parties to adduce medical expert evidence on the Deceased’s mental capacity at the time of the making of the 2005 Will, and ordering a joint report to be filed.  For various reasons which I will not go into, a joint statement and also a joint report by the medical experts were only filed in January 2013.

21.  Exchange of witness statements had taken place and the latest round of listing questionnaires were filed in the present action at about end of February/early March 2014.  The present action was then ready to go to trial.  D’s counsel’s certificate of estimated length of trial was filed earlier at end of July 2013, and the then estimate was that D would take about 6.5 days for her part of the trial.  P did not appear to have filed any counsel’s certificate at that time but it would appear that P had intended to call 13 witnesses including the doctors, and D had intended to call 4.  The total length of trial would be in the region of 10 days.

22.  As for HCA 59/2011, according to P’s counsel’s certificate filed on 21 May 2013, the time estimates for P should be between 15.5– 16.25 hours, or about 3–3.5 days depending on whether Andrew would be under mental incapacity or unfit to give evidence.  D’s counsel certificate of 29 July 2013 indicated it would be about 5days for D.  P had 4 witnesses and D had 5 witnesses, and the total length of trial would be around 8–8.5 days.

23.  D’s Dismissal Summons was supported by her affirmation filed on the same date.  Her ground was a simple one, namely the distribution of the Deceased’s estate would be the same, as in the event of the 2005 Will being held not valid, intestacy would arise and under intestacy, the 4 Children would each be entitled to on equal share of the estate anyway.  She therefore proposed that an independent third party professional to be appointed as administrator and for her to be passed over. The proposed independent person was a Certified Public Accountant, Mr Li Ka Sing.

24.  P then sought leave to file a re-amended statement of claim (“RASOC”).  There were extensive amendments proposed by her and many allegations made in her draft RASOC, in particular about the existence of an alleged handwritten will the Deceased which allegedly had been lost. 

25.  In her first affirmation filed on 5 June 2014 in support of her 1^st Re-Amendment Summons (“05.06.14 Affirmation”), P had attached to her draft RASOC a document titled “Nomination of beneficial successor” dated 21 May 1991 (“Nomination”)[2] which the Deceased had signed and sent to the then Financial Secretary Incorporated.  In the Nomination, the Deceased had nominated P as his “beneficial successor”, in place of his wife Madam Lee, to be the person entitled to an under lease of a property known as Maisonette No 6D, 5 & 6 floor, Block 4, Lung Cheung Court and the car park (“Lung Cheung Court Property”) of which the Deceased was at that time a lessee from the Government.  Also on 21 May 1991, the Deceased notified the Registrar General of Lands that it was his wish that upon termination of the lease to him in the event of his death or becoming a mentally disordered person, P be entitled to claim a further under lease of the Lung Cheung Court Property and for this purpose P was nominated as his beneficial successor.

26.  In the RASOC, P alleged in the lost handwritten will, among other things, she was appointed the sole executrix, and that the Lung Cheung Road Property was bequeathed to her and Andrew upon him reaching 21 years of age, and that the residuary estate was to be distributed among “5 children” in equal shares, the 5^th child being one David Lo, who was Madam Lee’s son from a previous relationship or the Deceased’s step son (“David”).  P further stated in the RASOC the handwritten will was evidenced by the Nomination, and she sought, among other things, that a declaration that the Nomination was to be valid and to take effect.

27.  Although P’s Re-Amended Summons was issued subsequent to D’s Dismissal Summons, I will first consider P’s Re-Amended Summons as her proposed amendments may have an impact on D’s application.

P’s Re-Amended Summons

28.  The statement of claim (as amended in 2008) contained about 6 pages and 12 paragraphs, and was based on the P’s allegation that the Deceased was not of sound mind, memory and understanding at the time of the purported execution of the 2005 Will. P was legally represented at that time.  In P’s draft RASOC, there were some proposed minor amendments to the original statement of claim, but what P proposed was to add some 25 pages of contents and further annexed 33 pages of her expert’s draft joint report, a copy of the Nomination and another 249 exhibits to the draft RASOC. 

29.  There were the following new main paragraphs, following  P’s own headings:

(i) Paragraph 16 – As of Execution and Related matters;

(ii) Paragraph 17– As of Form and Related matters;

(iii) Paragraph18–Particulars of the Deceased’s Real andPersonal properties;

(iv) Paragraph 19 – Particulars of the Deceased’s Real Property

A. Particulars of the “Nomination for beneficial successor”

B. Particulars of the Decease’s  lost handwritten will;

(v) Paragraph 20– Secondary Evidence of the Real Property;

(vi) Paragraph 21 – Particulars of “Waste” after the execution of the  Will ;

(vii) Paragraph22–Secondary Evidence of the Deceased’s Mental Capacity.

30.  Under each of the above main paragraphs, there were numerous sub-paragraphs.  In particular, under Paragraph 20, there were 67 sub-paragraphs, and under Paragraph 22, there were some 95 sub-paragraphs.  Some were repetitive.  The new paragraphs, namely 13 to 95 of RASOC were heavy on allegations and evidence.

31.  The new reliefs claimed by P in the draft RASOC [3]  were as follows:

“(d) A declaration by consent of the “Nomination of beneficial successor” dated 21^st May 1991 in Registrar General to be valid and take effect.

(e) That the Court to make an order for the succession of the Property Title for the Plaintiff in this action.

(f) That the Court to make an Order against the Defendant as the Executor and Trustee of the purported Will executed on January 24 2005.

(g) A declaration by consent of the Court to make an Interim Order for the Plaintiff.

(h) A declaration by consent of the Court to renounce the beneficiary status of the Defendant of this action.

(i) A declaration by consent of the Court for Restitution of the personal property in the safety deposit box for the benefit of the designated beneficiaries.

(j) A declaration by consent of the Court for Restitution of the personal properties wrongfully paid away for the benefit of the beneficiaries.

(k) That the Court grant to the Plaintiff Letters of Alternate Executor on the Deceased’s lost Will. ”

32.  As pointed out by Mr Mui, the declaratory reliefs in (d), (e), and (i) above should be made in an administration action rather than a probate action. 

33.  Reliefs (d) & (e) were in relation to the Nomination.  From what I could understand, what P was alleging was that under the Nomination, as she was nominated the “beneficial successor” to the Lung Cheung Road Property, the Deceased had intended that this property should go to her and/or Andrew, and that this property should be excluded from the Deceased’s estate available for distribution. 

34.  As seen in a letter dated 19 November 2010 from the Lands Department, Lung Cheung Court Property had in fact been assigned to the Deceased on 19 July 2003 and the under-lease held by the Deceased from the Government had ceased[4]. Thus, the Nomination had lapsed over 10 years ago.  In any event, P’s claims under (d) and (e) were misconceived, and should not be made in a probate action.

35.  As further pointed out by Mr Mui, even if D had taken possession of certain properties of the estate in her capacity as executrix, if and when an independent administrator were appointed, D would have to account for them to the independent administrator.  Further, Mr Mui had submitted that by claiming that the Lung Cheung Court Property and certain contents of the safe deposit box should belong to her and/or Andrew, P had thus rendered herself unfit to be appointed as administrator, because of conflict of interest.

36.  So far as relief (f), D was seeking to have an independent third party appointed to act as administrator of the Deceased’s estate.  It was not clear what kind of “interim order” P was seeking in relief (g). Relief (h) was incomprehensible.  It was also not clear what P was seeking in relief (j).

37.  The new relief (k) in relation to the alleged lost handwritten will, and I understand that P was seeking letters of administration be granted to her.  If the amendments in relation to the alleged lost handwritten will were allowed, these would constitute a completely new claim.  I will thus start with considering the proposed amendments in relation to the alleged lost handwritten will.  The handwritten was alleged by P to be written by the Deceased in January 2004 and was allegedly lost (“2004 Handwritten Will”).

38.  P had already filed a witness statement in the present action dated 22 April 2013.  It was a detailed statement, in which she had set out past events concerning the Deceased, including that the Deceased had signed the Nomination, and that on her birthday 3 March 2004, the Deceased had asked her to go up to his room and showed her a handwritten will in Chinese, naming her as the beneficial successor for the Lung Cheung Court Property, and that the lost will was written in January 2004. All P said about the lost 2004 Handwritten Will was that P was named as the beneficial successor for the Lung Cheung Court Property.  There were no other details mentioned by her in her then witness statement in relation to the 2004 Handwritten Will as set out now by her in the draft RASOC.

39.  The alleged 2004 Handwritten Will was then said by P to be lost and she said she had reported the loss to the police on 16 February 2005, under police report no KCRN 0500-3216, but such allegations were not been pleaded / mentioned in the statement of claim or in the amended statement of claim both filed in October 2008.

40.  P and D had in fact duly filed their respective affirmation of testamentary script shortly after P issued the writ herein, pursuant to Order 76 rule 5 of the Rules of the High Court (“TS Affirmation”).

41.  That there possibly could have been a handwritten will was in fact mentioned by D in her TS Affirmation.  D had said that the Deceased had told her in or about 1990 that he had prepared a handwritten will in the late 1980’s (“1980’s Handwritten Will”).  D said she had never seen it, was unaware of the contents, and that she was never in possession or control of either the original or a copy of the 1980’s Handwritten Will.

42.  P’s own TS Affirmation was filed on 20 November 2008, about a week after D’s which was filed on 12 November 2008.  D’s TS Affirmation should have alerted P to state the existence of any other handwritten will alleged by her, but yet there was no mention in P’s TS Affirmation of any alleged 2004 Handwritten Will.

43.  Instead, in P’s TS Affirmation, she clearly confirmed that apart from the Will there was noother testamentary script made by the Deceased within her knowledge[5].  

44.  There was no copy of any alleged handwritten will attached by P in her 05.06.14 Affirmation, nor was there any draft of the alleged 2004 Handwritten Will.  There was also no explanation by P in her 05.06.14 Affirmation as to why there was such a long delay in applying to amend her pleadings to plead those matters relating to the 2004 Handwritten Will.

45.  The above deficiencies in P’s 13.06.14 Affirmation were duly pointed out by D in her 5^th affirmation of 7 August 2014 filed in reply to all P’s affirmations which had been filed earlier.  Shortly after D’s 5^th affirmation,  P responded by issuing the Leave Summons with a supporting affirmation filed on 21 August 2014 and 3 affirmations filed on 26 August 2014 (affirmed on 25 August 2014) (“26.08.14 Affirmations”).  It was only in P’s 26.08.14 Affirmations that P had exhibited for the first time an alleged “draft” of the alleged 2004 Handwritten Will (“Alleged Draft”)[6].  P had also alleged in the 26.08.14 Affirmations that there were two witnesses, namely David  and Andrew’s father Ngor Chee Ping (“Ngor”), who had seen and read the 2004 Handwritten Will.

46.  So far as David was concerned, P had in fact earlier applied once to re-amend her statement of claim in January 2013, seeking to claim that David should be regarded as a child or issue of the Deceased[7]. As submitted by Mr Mui, this proposed amendment was bad in law, as Lam J, as he then was, had held in Re Estate of Chang Fong [2011] 4 HKC 40 that a step-child would not be a child or issue within the meaning of the Intestates’ Estates Ordinance.  P subsequently applied to withdraw her application, and was granted leave to do so, with costs to D.

47.  P had in her 26.08.14 Affirmations produced a letter dated 15 July 2014 purported to be written by David to the Court (“15.07.14 Letter”)[8].  P said David’s affirmation was to be filed, but so far it had not been.  It was allegedly stated in the 15.07.14 Letter by David that in October 2004 he had gone to visit the Deceased with his wife and daughter, and saw him bedridden and under artificial feeding.  When they saw the Deceased, the Deceased had written on a piece of paper “get will David read”.  P then asked the Deceased whether he meant his handwritten will, and the Deceased said yes, and P then went upstairs and brought down the will to show the Deceased.  David said he then read the will, which was dated January 2004.  After awhile, P then asked the Deceased how to divide the stocks that he owned, and the Deceased then allegedly wrote on another piece of paper :

“Stocks:

David, Stella (D), Edward, Deanna (P), Wendy, Andrew ”

48.  Further David alleged that he saw in the 2004 Handwritten Will that the Lung Cheung Property was to be given to P and Andrew.

49.  According to David, on more than one occasion, the Deceased had indicated to him that he was worried about P and Andrew’s welfare.  David also said he recognized the signature of the Deceased from the Deceased’s signature on the tax return papers for the purchase and sale agreements of his property in Richmond Canada.

50.  David was among one of P’s 13 witnesses she had intended to call for the trial of the present probate action.  David’s witness statement was filed on 23 April 2013.  There was, however, no mention about him having seen the 2004 Handwritten Will nor any handwritten will in his witness statement, nor those details allegedly mentioned by him in the 15.07.14 Letter.

51.  In fact, Mr Mui had drawn the court’s attention to another letter dated 10 May 2014, among those documents produced by P, which had been sent by David and addressed to Poon J who was in charge of this case at the time[9]. In that earlier letter, David had mentioned he visited the Deceased in October 2001 who had mentioned the piece of paper regarding the stocks were to be given to those 6 named persons as mentioned above and also in the Deceased’s handwritten will, the Lung Cheung Road Property was to go to P.  Thus, the handwritten will David referred to would have been in existence in October 2001.  David never mentioned any 2004 Handwritten Will in his earlier letter. Thus, David’s two letters contained inconsistencies.

52.  P had also produced in her 26.08.14 Affirmations an affirmation by Ngor exhibiting a letter dated 1 August 2014 allegedly signed by Ngor[10]. Ngor had said in March 2004, on P’s birthday, the Deceased had asked P and Ngor to his bedroom, and showed them a handwritten will and read out to them.  Ngor then said according to his recollection, in the will the Lung Cheung Court Property was to be given to P and Andrew, and the will was written in Chinese appointing P as his executrix, and that his estate was to be distributed among his 5 children.  The Deceased had also mentioned in the handwritten will to purchase a niche to place his ashes.  According to Ngor, the will was signed by the Deceased and the date was early 2004 and that it was a few days after the Deceased showed them the will that the Deceased had a stroke.  Ngor said he and P later separated in 2006.

53.  Ngor was not one of P’s intended witnesses for the trial, and had not previously given any witness statement.  Ngor’s affirmation had so far not been filed in court.  But again, on 19 April 2014, Ngor had written a letter to Poon J[11].  Ngor had mentioned in that earlier letter that in 2004 when the Deceased was in hospital, Ngor happened to be also in hospital and that when he visited the Deceased, the Deceased had told him that the Lung Cheung Road Property would be left to P and Andrew in his will.  There was no mention by Ngor at all at that time about having seen the 2004 Handwritten Will. 

54.  As Ngor was vague about when he and the Deceased were both in hospital, it was no clear whether this was before or after P’s birthday in March 2004.  What Ngor had said about the 2004 Handwritten Will was also vague , in particular he had said the will was dated “early 2004”,  and no month was given.

55.  Anyway, no copy of the alleged 2004 Handwritten Will had ever been produced by P.  There was no explanation how P came up with the Alleged Draft, or how the terms of the Alleged Draft were arrived at.  P’s allegations were vague.  The Alleged Draft appeared to be a document prepared by P based on her own allegations and indeed as submitted by Mr Mui, it appeared that P had simply copied what she stated in the draft RASOC onto a separate sheet of paper.  The Alleged Draft would seem to be prepared by P and her witnesses based on their recollections over 10 years after they had last allegedly have seen it.

56.  As for David and Ngor, neither of them were beneficiaries under the 2005 Will, nor would they be beneficiaries in case of intestacy if the 2005 Will were to be declared invalid.  I note that in P’s Alleged Draft prepared by her, David and Andrew had both been named as beneficiaries.  Ngor is the father of Andrew and Mr Mui had said that Ngor, being his father, would obviously wish Andrew to get a share.

57.  What is quite clear is that there was no evidence from P, David or Ngor that the Deceased’s execution of the lost 2004 Handwritten Will was witnessed by  two “witnesses”, as required under section 5(1) of the Wills Ordinance Cap 30.

58.  In the circumstances, as submitted by Mr Mui that even if a true copy of the alleged lost 2004 Handwritten Will were available, it would only be entitled to be admitted to probate under section 5(2) of the Wills Ordinance Cap 30,  which provides that :

“A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.”

59.  Mr Mui had referred to what was said by Lam J (as he then was) in Lam Ping v Zi Yan Lu, HCAP 13/2008, namely the standard of proof required under Section 5(2) was more stringent than the ordinary civil standard[12]. The court has thus to be satisfied beyond reasonable doubt that the document in question embodies the testamentary intentions of the Deceased.

60.  Mr Mui submitted that without a true copy of the alleged lost 2004 Handwritten Will or a true draft, the court would not be in a position to be satisfied beyond reasonable doubt that the Alleged Draft embodied the testamentary intentions of the Deceased, particularly when the Alleged Draft appeared to be a document reconstituted by P only recently, over 9 years after the Deceased’s death.

61.  P seemed also to have suggested in one of her affirmations that the 2004 Handwritten Will was “fraudulently lost”.  Allegations of fraud should not be made lightly.  In any event, according to P, it was she who had locked the 2004 Handwritten Will of the Deceased in the room drawer of the Deceased, and it was she who had the keys to the room drawer and the room.  Yet according to P, the alleged 2004 Handwritten Will was lost on 16 February 2005, about 3 or 4 weeks after the Deceased had made the 2005 Will.  If there was a police report, there had been no action taken by the police, so far as I am aware.  It was also not quite clear as to whether P had given a statement to the police at the time.

62.  P had failed to provide adequate explanation as to why she had allowed the issue of the allegedly lost 2004 Handwritten Will to lapse for the past 6 years, and only raised this matter in the last minute, after D had issued the Dismissal Summons, and 9 years after the Deceased’s death.

63.  P had said in her reply affirmation filed on 28 August 2014 that her previous solicitor had explained that the lost will of the Deceased was ‘no will’.  What she said was vague, and it was not clear about which lost will her previous solicitor was explaining to her.   P had not produced any evidence from her previous solicitor, but in any event, it would seem that even if P had raised the issue of a lost handwritten will with her previous solicitor, she had decided, upon legal advice, not to raise this point at that time.  This seemed to be P’s main reason for not raising the matter earlier in 2008.  This would thus be a conscious decision made by P after receiving legal advice from her then lawyers.  If so, she had not put forward any reason as to why she should be allowed to raise it now.    

64.  In DBS Bank (Hong Kong) Ltd v Sit Pan Jit HCA 382/2009, judgment 23.01.14, unrep, a late application by the defendant to amend pleadings was rejected.  DHCJ Marlene Ng, under the heading of “Lateness of the Application”, noted that :-

“17. The Summons was made (a) 13 months after leave was granted by Registrar K W Lung on 9 November 2012 to set the case down for trial, (b) a month after the 1^st PTR and (c) mere 1½ months before the first day of trial.  There is no doubt (and sensibly Mr Lee SC has not tried to argue otherwise) the application was prodigiously late, which lateness plainly cries out for an explanation, especially when after the Civil Justice Reform (“CJR”) it should be expected that the opposing party will complain of such late attempt to move litigation goalposts.

18. But no explanation has been given for such last minute interlocutory application by way of the Summons. Indeed, no affidavit has been filed to account for the lateness, and no reason was offered in the written submissions by Mr Lee SC.

19. After the implementation of the CJR and in view of the underlying objectives which emphasise not only substantive but also procedural fairness, if there is any last minute application (which necessarily must be a rare occurrence), the court expects a full account for the lateness of the application and full justification as to why the application should be entertained at all at such a late stage.  The court expects litigants to give careful and conscientious consideration and attention to the completion of the listing questionnaires before the case is set down for trial to minimise if not totally eradicate late interlocutory applications…”

65.  The learned judge had also referred to the principles in Ketteman v Hansel Properties Ltd [1987] 1 AC 189  being confirmed by DHCJ Lok in Li Shiu To v Li Shiu Tsang & Anor HCA 416/2003 (unreported, 14.08.12) to have remained good law[13].  I will not set out all the Ketteman principles but as DHCJ Lok had said in Li Shiu To, that one should put a caveat to applying those principles, in that one should have regard to the underlying objectives in the Order 1A of the Rules of the High Court after the CJR and that one should not assume that, once the Ketteman principles were satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings[14].

66.  D had only filed two affirmations, her first one in support of her Dismissal Summons and the second one was her 5^th affirmation in reply generally to P’s affirmations which had been filed at that time.   There had been numerous affirmations filed by P after D’s 5^th affirmation, some in connection with P’s Leave Summons.  Mr Mui had pointed out that D had not had a chance to file or to seek leave to file any further affirmations in reply prior to the 2^nd Hearing.  However, any prejudice to D could only be gleaned from her two affirmations filed.

67.  There had already been much delay since the present action was commenced 6 years ago.   In early 2014, the present action was ready to be set down.  I understand HCA59/2011 had been set down for 10 days, but any fixing of dates would depend on the present action as they had to be tried together.  Although so far no trial dates had fixed yet, but if P’s Re-Amendment Summons were to be allowed, in my view there would be considerable further delay and additional costs as D would then have to seek leave to amend her defence and also her witness statement/s.  D had already said in her 4^th affirmation that substantial legal expenses had already been incurred, and the litigation had been a severe drain on her, both financially and emotionally, and she had defended the present action because she considered that it was her duty to uphold her late father’s wishes.

68.  As said by Chu J, as she then was, in the case of Hesson Development Limited and Tang Ki Fan Tso and Tang Tin Kwai as Manager HCA 5584/1988 (unreported 30.09.03), as a general principle, pure undue delay would not be sufficient to bar an application to amend[15].

69.  However, in the present case, what was “pleaded” in reference to the alleged lost 2004 Handwritten Will in the draft RASOC was vague, lacking in particulars, confusing and unsatisfactory.  As I have mentioned earlier, the evidence of P, David and Ngor was also vague or inconsistent.  P had made some references that D had admitted to the Deceased having a handwritten will in her letters.  P seemed to be referring to two letters dated respectively 8 and 15 January 2005 from D to her[16], in which D had attached a list of documents she was asking P to produce to her[17].  Item 1 on the list (s) referred to the Deceased’s “original handwritten will”, which D said the Deceased had told her on numerous occasions that he had kept it in his black suitcase in his bedroom and that the Deceased had repeated this to D in December 2003 and again when the Deceased was at the Queen Elizabeth Hospital in March 2004.   The reference by D could not thus have been to the 2004 Handwritten Will.  As I have said earlier, D had referred to the 1980’s Handwritten Will in her TS Affirmation.   

70.  So far as the other proposed amendments in the draft RASOC were concerned, these were mainly matters of evidence and allegations, or not relevant in the present action, which is a probate action within the meaning of Order 76 rule 1(2) of the Rules of the High Court.  The main issues in the present case are the mental capacity of the Deceased at the time of making of the 2005 Will, and the validity of the 2005 Will.  These proposed amendments are not necessary to enable the real questions between the parties to be decided, and will not secure the just resolution of disputes between the parties.  

71.  As in the case of Hesson Development, if the very extensive amendments were allowed, D would need leave to file an amended defence and supplemental / further witness statements may need to be filed.  In my view, there is prejudice to D to have to be subject to a suddenly new claim of the alleged lost alleged 2004 Handwritten Will 6 years after this action commenced.

72.  As to those minor amendments in the RASOC such as adding a new Chinese name/amendments to P’s own name, putting in the exact date of her mother’s death instead of the present approximate date, updating the present ages of the 4 Children,  these can simply be dealt with at the trial.   

73.  Having regard to all the circumstances of this case and the matters referred to above including the unexplained long delay, the vague nature of P’s allegations and unsatisfactory evidence so far, I am of the view that P’s Re-Amendment Summons should not be allowed.

Dismissal Summons

74.  D’s Dismissal Summons was issued under s 36 of the Probate and Administration Ordinance Cap 10 (“PAO”).

75.  Since the 2005 Will provided for the Deceased’s estate to be divided equally amongst the 4 Children, Mr Mui submitted that the distribution of the Deceased’s estate would be exactly the same, whether the 2005 Will were to be held to be valid or not, as in the case if it were not, then it would be a case of intestacy.  It was not disputed that in case of intestacy the 4 Children will each be entitled to one equal share of the estate.

76.  Thus, according to Mr Mui, the only practical difference would be if the 2005 Will were to be upheld, D would have the first priority to apply for a grant of representation as executrix named under the 2005 Will of the Deceased.

77.  As submitted by Mr Mui, the court  has powers under s 36  pass over an executor and appoint an independent third party to act as administrator where it is considered “necessary or convenient” to do so.  Mr Mui had referred to Re Estate of Loo Che Chin [2013] 2 HKLRD 739, where an executor was passed over on the basis of hostility between executor and beneficiaries which affected administration.

78.  Mr Mui further submitted that as P’s claim in her statement of claim was only that D should not be granted probate, P could have taken out a summons under section 36 of the PAO seeking an order that D be passed over and not to commence a full-fledged probate action seeking to set aside the 2005 Will on the ground of alleged mental incapacity of the Deceased.

79.  Further, if the present action were to proceed to a full trial, according to Mr Mui it would probably take at least 12 to 13 days.  The Deceased’s estate was estimated to be around HK$9 million.  Mr Mui submitted that it would be an out-of-proportion exercise for the present probate action to proceed to trial.  Even if the 2005 Will were to be upheld, it could still be in the best interests of the estate, in view of the hostility between P and D, for an independent person to be appointed as an administrator.  On the other hand, even if P were to be successful in obtaining a declaration that the 2005 Will was invalid, it would not follow that the court would appoint her to act as administratrix.

80.  In the case of intestacy, all four siblings have equal priority to a grant under Rule 21 of the Non Contentious Probate Rules.  One of the 4 Children, Margaret, had expressed her support for D’s present application and opposed P’s application to be appointed administratrix.   Mr Mui had referred the court to Yee Kwok Chun & Anor v Yu Kwok Leung Albert & Anor HCCA 4070/2010 Decision dated 29.02.12, where the 6 children who were entitled to an equal share in the estate were divided into two camps, and Master J Wong in the end appointed an independent solicitor to act as administrator. 

81.  S 36 of PAO provides that:

“Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may, subject to s 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

82.  In  paragraph 7 of Re Estate of Loo Che Chin, Poon J had referred to an earlier case Re Estate of Ho Wai Man [2006] 4 HKLRD 421, HCMP 1038/2006 Judgment dated 15.08.06, where A Cheung J, as he then was, had, on an appeal from the Master, set out that s 36 of PAO applied to 4 different but overlapping situations (“4 Situations”) [18]:

(1) Where a person dies wholly intestate as to his estate;

(2) Where a person dies leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate;

(3) where the executor is, at the time of the death of  such person, resident out of Hong Kong; or

(4) where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the deceased’s  estate or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate.

83.  In Re Estate of Ho Wai Man, the Master’s interpretation of s 36 was that as the applicant in that case, being the widow of the deceased, was ranked number 1 under Rule 19 of the Non Contentious Probate Rules the applicant needed not by-pass others at all, and she was asking the Master to let her by-pass nobody and that was a fatal point in her application.

84.  A Cheung J was of the view that, on a plain reading of s 36, the Master’s conclusion that s 36 did not apply to an applicant who had first priority in entitlement to administration was “too sweeping”, and Cheung J then went on to say that this would be only true in relation to (3) and (4) of the 4 Situations, and for cases falling within (1) or (2), the Master’s conclusion was not true[19].  

85.  In Re Estate of Ho Wai Man, the applicant was the widow of the deceased who had died intestate and thus the applicant had first priority in entitled to a grant of administration.  Thus, that case was Situation (1) of the 4 Situations.

86.  In the present case, D had not conceded that 2005 Will was invalid and that the Deceased died intestate (Situation (1)).  D had not said that she was not willing and not competent to take probate (Situation (2)).  She was relying on Situation (4) for the Dismissal Summons. However, it would seem that based on what was said by Cheung J and his conclusions in Re Estate of Ho Wai Man, D, being the applicant in the Dismissal Summons and without conceding to intestacy  and without conceding  that she is not willing and not competent, D may not able to rely on s 36 for herself to be passed over. 

87.  In any event, there are legal differences between an executor and an administrator.  An executor derives his title to the estate from the will and upon the death of the testator and has a limited power to manage the estate even without a grant[20]. But an administrator would be in a different position.  In the present case, D was seeking an order for the independent accountant to be granted letters of administration of the Deceased’s estate (with the 2005 Will annexed). 

88.  As set out in paragraph 4-02 of Williams,Mortimer and Sunnucks on Executors, Administrators and Probate, letters of administration with the will annexed is a grant of representation made to a person (administrator) where a will is proved by any person other than an executor and an administrator only acquires title to the deceased’s estate by means of such a grant confers title on the administrator, and such a grant is also conclusive as to the terms of the deceased’s will (emphasis added)[21].

89.  What D was seeking in her Dismissal Summons is in effect a summary judgment, and as set out in paragraph 36-11 by Williams, Mortimer & Sunnucks[22],such is unlikely to be granted in cases where testamentary capacity is in issue unless the medical evidence is such as to put beyond any doubt that the testator at the time of execution of the will either lacked testamentary capacity or had testamentary capacity and that such clear cases are likely to be rare in practice.

90.  The mental capacity of the Deceased at the time of signing the Will and the Enduring P/A is in fact the main hotly disputed issue in the present action and HCA 59/2011.  The issue will not be disposed of by discontinuing or dismissing the present action.  The expert evidence and other evidence on the Deceased’s mental capacity for both actions would be similar, and if the doctors and other witnesses were not to be called in relation to the present action, they would have to be called in relation to HCA 59/2011.  Registrar Lung had ordered that the evidence in one action would be admissible in the other.  Although Mr Mui seemed to think the two actions would each last about 10 days making a total of 20 days, in my view there would be overlap of quite a lot of  the evidence of P, D and their witnesses, and cost and time on expert or other evidence would not be saved substantially by simply discontinuing or dismissing the present action. 

91.  Having considered all the circumstances of this case, I am not prepared to grant D those orders sought by her in her Dismissal Summons.  Both actions ought really proceed to trial as soon as practicable.

Order 

92.  My order is thus:

(i) P’s summons issued on 13 June 2014 be dismissed.

(ii) D’s summons issued on 27 February 2014 be dismissed. 

93.  In relation to costs, I see no reason as to why costs should not follow the event.  P should thus pay D’s costs of P’s summonses issued on 4 and 13 June 2014 including any reserved costs, and D should pay P’s costs of D’s summons issued on 27 February 2014 including any reserved costs.  So far as hearing time is concerned, the time of the two hearings on 18 June 2014 and 10 September 2014 be apportioned equally between P’s two summonses on one hand, and D’s summons on the other.  These are costs order nisi, which are to be made final after 14 days.

[1] AB:1; date stated in summons 4 June 2014

[2] AB:71

[3] Pg 31, RASOC, AB:32

[4] AB: 339

[5] AB:335-336

[6] AB:721

[7] DB:43

[8] AB:722

[9] AB:173

[10] AB:725

[11] AB:174

[12] At para 72

[13] At para 23, DBS Bank (Hong Kong) Limited

[14] At paras 16, 17 of Li Shiu To

[15] See para 13

[16] AB:150, 154

[17] AB:151, 157

[18] At para 18

[19] At para 21

[20] See para 38, Re Estate of Ho Wai Man

[21] At pg 50

[22] At pg 529