MO CHAU MUI v. KONG MOO SUM SYLVIA AND ANOTHER

HCAP 5/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 5 OF 2006

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J U D G M E N T

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1.  This is a probate action.  The plaintiff asks the court to pronounce in solemn form a will of the testatrix executed on 9 May 1980 (“the 1980 Will”). 

2.  The plaintiff was a daughter-in-law of the testatrix and a beneficiary of the 1980 Will.  The defendants put in a defence and counterclaim.  The 1st defendant was a daughter of the testatrix and the 2nd defendant is the 1st defendant’s husband.  The defendants ask the court to pronounce against the validity of the 1980 Will.  They further ask the court to pronounce in solemn form another will purportedly executed by the testatrix on 17 May 2001 (“the 2001 Will”).  The 1st defendant is a beneficiary of the 2001 Will but not of the 1980 Will.  The plaintiff is not a beneficiary of the 2001 Will.  The 2nd defendant is not a beneficiary of either Will.  The defendants have, however, withdrawn their defence and counterclaim on the first day of the trial. 

3.  The parties also agreed on the costs payable by the defendants to the plaintiff as a result of the defendants’ defence and counterclaim.  However, their agreement required the estate of the testatrix to reimburse the plaintiff any shortfall between the plaintiff’s own legal costs of the defence and counterclaim and the costs agreed between the plaintiff and the defendants.  Since this term of the compromise may affect the interests of the other beneficiaries of the 1980 Will, the trial was adjourned to today for the plaintiff to notify all the beneficiaries of this Will about this term of the compromise and for the beneficiaries to object to it, if need be.

4.  I have now been advised by counsel for the plaintiff that all the beneficiaries of the 1980 Will have been notified about the compromise and some of the beneficiaries objected to it.  The objections caused further negotiations between the plaintiff and the defendants and led to a revision of the amount of costs payable by the defendants to the plaintiff for the defence and counterclaim.  This revision now satisfies all the beneficiaries and there is no more objection to the compromise.

5.  The plaintiff’s solicitors are also happy to accept these costs as the full costs for their works on the defence and counterclaim and will not ask for more costs for such works.  What remain are only the costs to be paid by the plaintiff for proving the 1980 Will. 

6.  With the withdrawal of the defence and counterclaim and the absence of any objection to the settlement on costs, this action has become very simple.  The plaintiff only has to prove the testatrix’s capacity to make the 1980 Will at the time when the Will was executed and the fact of its execution by the testatrix.

7.  The testatrix was a successful businesswoman despite only having been given little education.  She and her husband used to run a building and construction business.  Her husband passed away in 1950.  She then ran the whole business by herself.  She constructed a number of buildings in Hong Kong.  She always sold the upper floors and reserved the ground floor shop for the use of her chain of restaurants. 

8.  She made the 1980 Will on 9 May 1980 at the office of Messrs Johnson, Stokes & Master.  She was then 67 years old.  After making this will, she continued with her business until 1984 when she retired.

9.  She had two sons and 11 grandchildren born of the sons.  She also had five daughters and nine grandchildren born of the daughters.  By the 1980 Will, she appointed four executors.  She divided her estate into 100 shares and made elaborate provisions for their distribution.  The provisions also provided for the widows and children of those beneficiaries who may not survive until the date of distribution.  The date of distribution was set at the tenth anniversary of the death of the testatrix.

10.  The execution of the 1980 Will was attested by Mr Heung Kwok Kee Humphrey and Mr K W Liu, both of Johnson, Stokes & Master.  Mr Heung is a retired partner of the firm and Mr Liu had worked in the firm for 50 years before retiring in 1990. 

11.  Mr Heung has made an affirmation on 23 October 2008 for the plaintiff in support of this action.  He said one of the signatures on page 6 of the 1980 Will and one of the initials on each of the first five pages of this Will are respectively his signature and initials.  However, because of the long lapse of time, he no longer has any recallable recollection of the testatrix or of the execution of the 1980 Will by the testatrix on 9 May 1980.  He added that he would not have subscribed his signature as a witness to the 1980 Will unless he was satisfied with the identity of the testatrix, that the 1980 Will was signed by the testatrix herself in the presence of Mr Liu and himself, and that the testatrix understood and approved the contents of the 1980 Will.

12.  I accept Mr Heung’s evidence and the other evidence before me.  On the basis of all the evidence before me as summarised above, I find that the testatrix had the capacity to execute the 1980 Will on 9 May 1980 when this Will was executed and she had indeed executed this Will. 

13.  I grant leave for the defendants to withdraw their amended defence and counterclaim with costs as agreed.  I further pronounce in solemn form for the true last will of the testatrix dated 9 May 1980.  I also order that the plaintiff’s costs of this action, excluding the costs of the defence and counterclaim, be borne by the estate on trustee basis.