HO WAI PING v. HO KA MAN CARMEN

HCAP 16/2009

PROBATE ACTION NO 16 OF 2009

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J U D G M E N T
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Introduction

1.  The subject matter of this action is a will dated 15 June 2003 (“the Will”) of the late Mr Ho Chi Yin (“the Deceased”), who passed away on 2 December 2007 in a traffic accident. 

2.  The Plaintiff, Ms Ho Wai Ping (“Wai Ping”), is the younger sister of the Deceased.  The Defendant, Miss Ho Ka Man Carmen (“Carmen”), is the only daughter of the Deceased.

3.  Under the Will, two landed properties of the Deceased were bequeathed to the Deceased’s father (“Ho Senior”) and Wai Ping respectively; and the money in the Deceased’s bank accounts, together with the Deceased’s pension, were all to be donated to the Hong Kong Community Chest. 

4.  However, the Will had not been executed in accordance with the requirements of section 5(1) of the Wills Ordinance, Cap 30 (“the Ordinance”).

5.  By this action, Wai Ping seeks an Order that the Will be pronounced in the solemn form and she be granted the probate of the estate of the Deceased.

6.  Initially, Carmen’s defence was that the Will was a forgery.  In response to this, Wai Ping sought an opinion[1] from a handwriting expert.  As a result, Carmen withdrew the forgery allegation. 

7.  In her Amended Defence and Counterclaim, Carmen also denied that the Will is the last Will of the Deceased.  However, Carmen did not adduce any evidence to prove the existence of any subsequent will of the Deceased.

8.  In his closing submission, Mr Chan, counsel for Carmen, fairly acknowledged that the remaining issue before the court is whether Wai Ping can satisfy this court that there can be no reasonable doubt that the Will embodies the testamentary intentions of the Deceased, as it is required under section 5(2) of the Ordinance to deem the Will to be duly executed.

Witnesses

9.  The following persons have testified in court as Wai Ping’s witnesses:

(1) Wai Ping herself;

(2) Miss Li Wing Ka (“Wing Ka”) and Miss Li Wing Sze(“Wing Sze”), Wai Ping’s daughters;

(3) Mr Kwong Chi Wo (“Kwong”), a colleague and friend of the Deceased;

(4) Mr Chau Yiu Keung, a friend of the Deceased; and

(5) Ms Kwan Yuk Ping (“Kwan”), a friend of Wai Ping.

10.  Carmen has not called all those who have prepared witness statements for her to give evidence.  The following persons are those who have both prepared witness statements for Carmen and testified at trial:

(1) Carmen herself; and

(2) Mr Chan Tat Sun (“Chan”) and Mr Szeto Io Chong (“Szeto”), colleagues and friends of the Deceased.

11.  As the issue before this court is narrowed down to the aforementioned one, many aspects of the witnesses’ evidence has become immaterial.  In this judgment, I would only refer to those parts of the evidence which are material to the issue.

Factual background

12.  The Deceased was born on 2 October 1951.  He joined the Housing Department in 1974 and retired from the civil service under the Voluntary Departure Scheme in 2003.  In his career in the Government, he started as a Foreman and worked his way up to become a Building Services Engineer at his retirement.

13.  The Deceased married Madam Wong So Fun (“Madam Wong”) in 1977.  Carmen was born in 1978 in this wedlock.  On 19 June 1985, the Deceased and Madam Wong acquired Flat C on 12/F, Wah Fai Court, 1-6 Ying Wa Terrace, Hong Kong (“the Wah Fai Court property”) as joint tenants.  On 28 November 1989, the Deceased had become the sole owner of the Wah Fai Court property.

14.  The Deceased and Madam Wong divorced in 1990.  The custody of Carmen was granted to the Deceased.  In 1993, when Carmen was 15 years old, the Deceased sent her to study in England but Carmen could not adapt to her life there.  The Deceased however insisted Carmen to continue her study in England and as a result they had quarrels over this.

15.  Apparently, the father and daughter relationship had not improved.  In about 1996, Carmen left a note to the Deceased saying that she would leave home forever and gone.

16.  Madam Cheung Sin was the Deceased’s mother.  She predeceased the Deceased at a very early stage.  The Deceased had 4 siblings: Madam Ho Lai Ying (deceased on 29 March 1982 at 32 years old); Mr Ho Chi Sing (deceased on 24 January 1991 at the age of 34 years old); Wai Ping (who was born on 5 May 1954) and Mr Ho Chi Ming (“Ming Ming”) (who was born on 13 October 1958).

17.  After the death of Mr Ho Chi Shing, the Deceased had arranged Ho Senior to reside in the Wah Fai Court property, whereas the Deceased and Carmen resided at Flat 3D, No 1B Babington Path, Hong Kong.

18.  On 15 April 2003, the Deceased acquired 4^th Floor (Block C), No 1B Babington Path, Hong Kong (“the Ping On Mansion property”) for HK$1 million.

The Will

19.  The contents of the Will are as follows:

20.  In her evidence, Wai Ping gave a detailed account on how the Deceased made the Will on 15 June 2003, the same date on which the Deceased set off for his long vacation trip[2] to Johannesburg and Botswana (“theSouth Africa trip”) in his pre-retirement leave.

21.  According to Wai Ping, a couple of days before 15 June 2003, the Deceased asked her out for lunch saying that he has something to give her.  On 15 June 2003, the Deceased and Wai Ping met for lunch at a restaurant called Fuk Yuen Hot Pot Seafood Restaurant (“福苑火煱海鮮酒家”) in Mongkok.

22.  As recalled by Wai Ping, they sat down at a table in an open dining area.  After ordering the tea, the Deceased took out a brown envelope with some documents inside and gave it to her.  He then took out a white envelope from his pocket and from the white envelope he took out a piece of paper.  He told Wai Ping that he was going to write a will.  He then got a pen out of his pocket and proceeded to write in English on the paper.  He wrote fluently.  It seemed to her that he had thought about the contents of it before.  After finished writing, he handed over the paper to her.  As she could not read English, she asked the Deceased what he had written down on the paper.  The Deceased then explained the matter to her. 

23.  The Deceased told Wai Ping that if he died, the Wah Fai Court property will be succeeded by Ho Senior and the Ping On Mansion property will be succeeded by her.  Wai Ping asked about Carmen but the Deceased said the purpose of making the Will is to prevent Madam Wong from taking his two properties through Carmen. The Deceased said he would not leave anything to them.  If he encounters any mishap, Wai Ping can bring the Will to Kwan and her younger brother[3] to sign on it then Madam Wong and Carmen will not be able to take his properties.  Wai Ping asked the Deceased to leave something to Ming Ming and the Deceased said the Wah Fai Court Property will be given to Ming Ming upon the death of Ho Senior.  The Deceased added that his money will be donated to the Community Chest.  Wai Ping initially declined to accept the property but in the end she agreed.  She told the Deceased that she will rent out the flat and the rent will be used to support Ho Senior’s livings[4].

24.  Wai Ping said in her evidence that although originally she sought to refuse the Deceased’s bequest of the Ping On Mansion Property to her, eventually she accepted it out of respect of the Deceased’s wish, in particular his wish not to leave anything to Madam Wong and Carmen.  She wept at that time as she was afraid that something unbecoming would happen to the Deceased after his writing of the Will.  She witnessed the whole process of his writing of the Will and signing of the same.  The Deceased had not asked anyone to join them on that occasion so that there were only the Deceased and her at the table when he made and signed the Will. The Deceased was aware that there were no independent witnesses when he wrote the Will.  He instructed her to ask her friends Kwan and her brother to sign on the Will as witnesses if he passed away.  The Deceased knew both of them as her old neighbours and good friends.  The Deceased then folded up the Will, put it back into the white envelope and handed over the white envelope to her.  He asked her to take good care of the Will.  He then proceeded to order the food.

25.  The Deceased took the 23:40 flight to South Africa that evening.

26.  According to Wai Ping, when the Deceased returned from the South Africa trip, she intended to return all the documents to him but he only took back the brown envelope and asked her to hold onto the Will.  The Deceased did not explain why he took back only the brown envelope but not the white one.  He just asked her to continue keeping the Will in her place.  Since then, Wai Ping had all along kept the Will at her home.  She had never opened the white envelope prior to the Deceased’s death.

27.  Wai Ping had told Kwan and Wing Ka about the Will before the death of the Deceased.  But Wai Ping’s husband and her other daughters learnt of the Will only after the death of the Deceased.

28.  In or about 2005, the Deceased told Wai Ping that he had been admitted to hospital because of heart pain.  He was diagnosed to have cardiac arrhythmia.  On 11 August 2005, the Deceased was admitted to Tung Wah Eastern Hospital because of retinal detachment.  He was discharged on 13 August 2005.  On 8 May 2006, the Deceased consulted a doctor for retinal detachment.  The Deceased was referred to Tung Wah Eastern Hospital.

29.  Ho Senior predeceased the Deceased in December 2006 at the age of 80.  The Deceased thereafter had intended to sell the Wah Fai Court property.  Unfortunately, the Deceased was killed in a traffic accident on 2 December 2007.

30.  On 5 December 2007, after all those years since Carmen left the Deceased, Wai Ping and Carmen met at Queen Mary Hospital, when they together identified the body of the Deceased.  On that date, Wing Sze told Carmen that the Deceased had left behind a will.  This was the first time Carmen learnt about the deceased having made a will.    

31.  On 6 December 2007, Carmen, together with Madam Wong and Wing Sze, went to the office of Messrs Or & Partners (“O&P”), solicitors.  On that occasion, Carmen signed on a document titled “Renunciation of Administration” whereby she agreed to renounce her right and title to letters of administration of the estate of the Deceased.  However, Carmen later changed her mind and as a result, the Renunciation of Administration was returned to her on 20 February 2008.

32.  On 19 November 2008, the safe deposit box of Ho Senior and the Deceased was inspected.  No other will or testamentary paper of the Deceased could be found.  Carmen was given a copy of the Will on that occasion. 

Carmen’s case

33.  Carmen’s pleaded case is that “the Alleged Will was a gap will only intended to be operative in case the Deceased met with his death during his trip … or alternatively, the Deceased had sometime after his safe return from the said trip withdrawn his intention that the Alleged Will contained his last testamentary instructions”[5].  She counterclaims for an Order that the Court shall pronounce against the Will propounded by the Plaintiff and that the letters of administration of the Estate of the Deceased shall be granted to her.

34.  In the course of Mr Chan’s opening submission, I invited Mr Chan to clarify, in view of the fact that the Deceased had expressed clearly in his own words that the Will was his will,  what else can the Will be if it is not a document encompassing the Deceased’s testamentary intentions.  After several attempts to put forward a same point in different ways, Mr Chan finally admitted that the only point he made was actually that it was a “gap will”.  He argued that there is “reasonable doubt” that the Will was only a temporary will intended by the Deceased to be operative for his South Africa trip only and was one which the Deceased had withdrawn after his safe return from the South Africa trip.

35.  Mr Chan submitted that, there is doubt as to whether Wai Ping is a credible and reliable witness generally; and particularly, whether she has told the court the whole truthon relevant matters and whether she has reliably recounted allthe pertinent conversations between her and the Deceased in relation to the alleged Will.

36.  Carmen has filed two witness statements.  In the first witness statement she described the events happened after the death of the Deceased.  She said Wing Sze asked her to sign a document to enable them to use money in the Deceased’s bank account to pay for the Deceased’s funeral expenses.  She went to the office of O&P to sign a document but she did not understand the legal implication of the document she signed, albeit the contents of which had been explained to her by a solicitor. It was until February 2008 that her boyfriend showed the document to his friend that she was advised that the purpose of the document was to waive her rights on the Deceased’s estate.  She thought she was misled by Wing Sze. She had a meeting with Wing Sze at a restaurant to talk about the matter but Wing Sze told her that if she insisted on dealing with the Deceased’s estate Wing Sze will make her not receiving any of the Deceased’s estate.  After the meeting Wing Sze telephoned her telling her that she could take back the document from O&P.

37.  In her first witness statement, Carmen also mentioned about some incidents leading to her belief that Wai Ping was hiding some important documents of the Deceased from her. She said in April 2008 when she wanted to go to the Ping On Mansion Property with her boyfriend, they found the lock of the main door changed.  They had to hire a locksmith to gain entry and they found the pile of documents they have seen there before no longer there.

38.  In the first witness statement, Carmen also made comments on the “unusual features” of the Will.

39.  The first statement of Carmen was made before the withdrawal of her forgery allegation.  Most of Carmen’s evidence in her first witness statement has become irrelevant following the withdrawal of the allegation.

40.  In her supplemental witness statement and in her testimony at trial, Carmen talked more about her relationship with the Deceased.  She said she left home because she did not want to study in England but she kept staying in contact with the Deceased. Although the Deceased often reminded her to continue her study in England, he had become not that insistent on it.  He still cared about her a lot and had not said anything unkind to her in the telephone conversations between them. In early 2003, the Deceased invited her to go back home for dinner together with her boyfriend.  She told the Deceased that she has just broken up with her boyfriend and the Deceased tried to convince her to move back home.  However, she was too ashamed of herself to go back home as she had made a wrong decision to leave home and she had had no achievement at all since leaving home.  Carmen ceased contact with the Deceased in 2003[6].

41.  Chan and Sezto gave evidence that the Deceased had never told them Carmen left him.  The Deceased gave them the impression that Carmen had all along been studying in England and sometimes the Deceased would purchase gifts like video camera for Carmen.

42.  There is a difference between the parties regarding the relationship between the Deceased and Carmen.  According to Wai Ping and her witnesses, the Deceased and Carmen did not contact each other after Carmen left home.  The Deceased was angry with Carmen and Madam Wong.

43.  The relevance of this aspect of the evidence is, in my view, rather limited.  It is Mr Chan’s submission that it would be unreasonable for the Deceased not leaving anything to Carmen as she is his only daughter.  But as the authenticity of the Will is not under dispute, and the testamentary capacity of the Deceased is unchallenged, whether the content of a will is objectively reasonable or not shall bear no significance.

44.  The limited relevance of the differences between the parties’ evidence on facts is whether they can cast doubt on Wai Ping’s case that the Will embodies the testamentary intentions of the Deceased.  In other words, as I will explain further later, the relevance is only on the credibility of Wai Ping’s evidence.

Section 5(2)

45.  In her closing submission, Ms Wu, counsel for Wai Ping, presented a thorough study on the legal principles on section 5(2) of the Ordinance.  But for present purpose I shall only set out in part the comprehensive research of Ms Wu.

46.  Section 5(1) of the Ordinance prescribes the formalities required for the proper execution of a will:

“Subject to section 6 and 23D, no will shall be valid unless –

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(d) each witness either –

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

47.  In the present case, the Will had failed to comply with the requirements under section 5(1)(c) and (d) of the Ordinance.

48.  Section 5(2) of the Ordinance is a wholly new provision added by section 3 of the Wills (Amendment) Ordinance (56 of 1995), which replaced the previous section 5(2) in the original Wills Ordinance (32 of 1970) which was limited to the wills of Chinese testators written in Chinese and signed by the testator. 

49.  The new Section 5(2) is much wider in scope.  It provides for a discretionary dispensing power:-

“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.”

50.  Cheung J (as Cheung CJHC then was) described the effect of the amendment in Re Estate of Mui Yim Fong[7], as follows:

“… the exception to the formality requirements in section 5(2) is expanded to cover all testamentary documents which do not comply with the formality requirements, provided that the court is satisfied that there can be no reasonable doubt that the document in question embodies the testamentary intentions of the deceased person.” [emphasis added]

51.  It has been held that the words “no reasonable doubt” in section 5(2) requires “the highest standard of proof of beyond reasonable doubt that the will of the testator was executed by him with testamentary intention”[8].

52.  Lam J (as Lam VP then was) agreed in Lam Ping v Zi Yan Lu[9], that the standard of proof required under section 5(2) of the Ordinance is “more stringent than the ordinary civil standard” in that “the court has to be satisfied beyond reasonable doubt that the document in question embodies the testamentary intentions of the deceased”.

53.  On the facts of that case, the court was satisfied beyond reasonable doubt that the will in question, notwithstanding it was attested only by one witness and challenged on the grounds of fraud, misrepresentation and duress, embodied the testamentary intentions of the deceased.  Albeit that the court was then addressing the issue of the testator’s knowledge and approval of the testamentary document, it is worth noting that the court made particular note of the fact that the document was clearly stated to be a will[10] on its face.

54.  In Yeung Yuen King v Kong Wai Ha[11], Deputy Judge B Chu (as B Chu J then was) had to decide whether the handwritten notes of the deceased on two pages in a diary embodied his testamentary intentions pursuant to section 5(2) and constituted his last and valid will. Although the deceased signed his name on the first of the two pages of the diary, the document was not attested by any witness.  It was the plaintiff’s case, who was the sole beneficiary of the estate of the deceased as written therein, that about a week after the deceased wrote the document, the deceased showed her the diary and told her that it contained his will.  Since then, the diary had been kept by the plaintiff in a drawer insider her bedroom at home.  Her Ladyship held[12] that the key issue was whether “[the Plaintiff] can prove beyond reasonable doubt” that the document embodied the testamentary intentions of the Deceased.  This was answered in the affirmative despite the lack of attestation.

55.  Although there is no express requirement of substantial compliance (as was required under the old provision) under section 5(2), there are commentaries which expressed reservations on whether the provision is applicable in situations where the subject will has not been attested by any witness at all. 

56.  In The Annotated Ordinance of Hong Kong: Wills Ordinance (Cap 30[13]),  the learned editors commented as follows:

“[5.23] Subsection (2)

This is a wholly new provision added by s 3 of the Wills (Amendment) Ordinance (56 of 1995), and replaces the previous s 5(2) in the original Wills Ordinance (32 of 1970), which was limited to the wills of Chinese testators written in Chinese and signed by the testator. Such wills were accepted as valid although lacking witnesses. The new provision is much wider in scope. It provides for a discretionary dispensing power to accept the will as valid even though the execution of the will does not strictly comply or accord with the requirements in subs (1). Such clauses, which can be found in other jurisdictions but not in the English legislation, are sometimes referred to as ‘substantial compliance provisions’, ie the will substantially, but not exactly, complies with the formality requirements. The new provision will apply to so-called ‘Chinese wills’ but is not so limited and can apply to any will which satisfies the provisions of this subsection.

There are few case law decisions on this subsection, for an example see Tam Mei Kam v HSBC International Trustee Ltd & Ors [2008] HKCU 930 and Bermuda Trust (Hong Kong) Ltd v Cai Guo Xiang & Ors [2006] HKCU 437. Examples of situations where this subsection might apply, could include: a ‘Chinese will’ which would have fallen within the previous subsection; an English will which has only one witness; or where the will has two witnesses but the order of signing is not correct (see [5.16] above). Whether a will which is not signed by the testator at all, or has no witnesses at all, could be regarded as within the power is a matter of conjecture.” [emphasis added]

57.  Similarly, the editors of Halsbury’s Laws of Hong Kong[14], also state that section 5(2) would come into play only if there is “substantial compliance” and “it is not clear whether a will which is not signed by the testator, or has no witnesses at all, could be regarded as within the power”.

58.  On the other hand, Ms Wu referred this court to the report[15] of the Law Reform Commission of Hong Kong which explained the fundamental reasons for the requirement of formality in the execution of wills in it as follows:

“2.11 In considering section 5(2), we think it is necessary to bear in mind the fundamental reasons for any requirement of formality in the execution of Wills. The English Law Reform Committee (‘the Committee’) in its 22nd Report (‘The Making and Revocation of Wills’, 1980; Cmnd 7902) identified the fundamental principle in the following terms:

‘The purpose of the law (relating to formal requirements are, first, to ensure that documents genuinely represent the testator’s intentions should be valid and, secondly,to prevent the admission to probate of wills which, because they are forged or for any other reason, do not represent the true wishes of the testator.” (para 2.2)  We agree wholeheartedly with this principle (which the Committee described as “exceptionable”, but we disagree with the Committee’s belief in the necessity of retaining as an invariable requirement compliance with the formalities (albeit relaxed by section 17 of the AJA), so as to impress upon a testator the gravity of his act and thus safeguard against “hasty or ill-conceived dispositions”.  This latter point is not relevant to the “unexceptionable principle” stated above, and conflicts with the fundamental principle of freedom of testation.  The effect of a strict requirement of formality is that persons who had execution wills they thought were valid but were in fact defective through a failure to observe the formalities, will die intestate.’” [emphasis added]

59.  This has also been the approach in other common law jurisdictions, such as Australia and Canada. 

60.  In Estate of Williams[16], it was held that section 12(2) of the Wills Act 1936(SA) (a similar provision to section 5(2) in South Australia) was available to save the validity as a will of a document which did not bear the signature of the testatrix but otherwise embodied her testamentary intentions and intended by her to constitute her will.  King CJ held at p 425 that:

“Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.” [emphasis added]

61.  In Mackenzie v Osburn[17], a case involving section 18A of the Wills Probate and Administration Act 1898 (NSW), it had been recognized that the comparable section in New South Wales might apply even where there was no attestation to the document by any witness and no evidence that the deceased executed the document in the presence of any witnesses. 

62.  In a similar vein, in Manitoba, it was held that section 23 of the Wills Act 1974-1975 could be triggered even where none of the formal requirements had been complied with: Dale George v Ronald Wayne Daily & Another[18].

63.  Having considered the report of the Law Reform Commission and in view of the above cited overseas decisions and Yeung Yuen King v Kong Wai Ha[19], I am of the view that there is no good reason to imply the requirement of “substantial compliance” with the section 5(1) formalities under section 5(2) of the Ordinance.  On this point, I respectfully do not agree with the opinions of the learned editors of Annotated Ordinance of Hong Kong: Wills Ordinance (Cap 30)and Halsbury’s Laws of Hong Kong.

Testamentary intentions

64.  Regarding testamentary intentions, the learned authors of Williams on Willswrote at 10.4:

“Animus testandi. An instrument cannot be a provable will unless the maker had an animus testandi. This means that the maker must intend that his document shall take effect as a revocable ambulatory disposition of his property which is to take effect on death. The document in whatever form, must disclose the intention of the maker respecting the posthumous disposition of his property. Subject to this it is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act, but there must be the intention that the document is dependent on the death of the person who executes it. The position is put thus by Sir James Hannen P:

‘The true principle appears to be that if there is proof, either in the paper itself or from clear evidence dehors, first that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event which was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary.  It is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act’ ”. [emphasis added]

65.  In this context, a deceased’s testamentary intentions simply mean his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death[20].

66.  On this point, in Re Leung Wai Jing[21], Yam J had this to say:

“11. It is well established that a valid will must embody the testamentary intention of the deceased, meaning that it must be testamentary, ambulatory and revocable and it must not take effect until death. Williams on Wills states:

A will is a document which is of no effect until the testator’s death and until then is a mere declaration of his intention and is at all times until such death subject to revocation or variation. The execution of a will leaves the testator free during his life to dispose of his property as he pleases and operates subject to any such disposition inter vivos (Vol 1 para 1.7)

A will subjects the assets of the testator from the moment of its execution, to a series of dispositions which, unless revoked, will operate at this death; these dispositions will remain inchoate until his death … (Vol 1 para 1.7).” [emphasis added]

67.  The meaning of testamentary intentions was also explained by Waite LJ in Corbett v Newey[22]:

“Animus testandi, or testamentary intent, means an intention to make ‘a revocable ambulatory disposition of the maker’s property which is to take effect on death:’ see In re Berger, decd. [1990] Ch 118, 129 per Mustill LJ. A will, in other words, subjects the assets of the testator, from the moment of its execution, to a series of dispositions, which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter accordingly as the assets in the ownership of the testator during his lifetime may change in nature, value or extent. Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory) regime will be called into play immediately and not postponed to, or made dependent upon, some future event or condition. That is why, surprising though the distinction may at first sight be to a layman, it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.”

Conditional will

68.  For a will to be refused probate on the ground that a contingency has not occurred, it must be clear from the express terms of the will that the testator intended the stated contingency to limit the operation of the will.  As Sir F H Jeune said in In the Goods of Spratt[23]:

“If the will is clearly expressed to take effect only on the happening, or not happening, of any event – that he is led to make his will by reason of the uncertainty of life in general, or for some special reason, cadit quæstio, it is not conditional. But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered.” [emphasis added]

69.  The facts of that case bear similarities in some way to the “gap will” proposition put forward by Mr Chan.  A military officer on active service in the Maroi War wrote a letter to his sister to the effect that he wished to make everything he possessed over to her “in case of an accident”.  The officer survived the war and died long after the termination of the war.  However, the court held that the letter was a military will which was not conditional upon the death of the officer during the war, or to be operative during that period only.  Sir F H Jeune said at 35 as follows:

“Applying the test which I have above indicated to the present case, I think that the words “in case of an accident” point only to the reason why the testator desired to make a will. There is no expression of any period to be found in the document within which alone it was to be operative; on the contrary, the request that the will should be kept by his sister till he asked for it appears to me to shew that the testator had not in his mind any defined period of time at the expiration of which he intended that his will should cease to be effective. Nor is there anything in the disposition of the property which indicates that it was temporary, or that it did not apply to whatever property of which the testator might at any time be possessed. I am of the opinion, therefore, that probate should be granted of the document in question.” [emphasis added]

70.  Morritt LJ also said in Corbett v Newey[24] as follows:

“In Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, p. 124, it is stated that: ‘extrinsic evidence may be received to show that a will not expressed to be conditional was in fact so intended.’ The authority given in the footnote as authority for that proposition is In re Govier, decd. [1950] P. 237. But, as is common ground, that case is not authority for the proposition stated in the text as it concerned the admission of extrinsic evidence to resolve an ambiguity appearing from the expression of the contingency in the will itself.

Accordingly in my view there is no authority to support the view that a will may be made conditional otherwise than in accordance with the conditions expressed in it.”

Discussion

71.  The Will was written in clear and unambiguous terms.  It was expressly stated, in the Deceased own words, to be his will and there is nothing to doubt about his understanding of the meaning of a will.  On the Will the Deceased set out how his properties are to be disposed of upon his death. On the face of it the Will embodies the Deceased’s testamentary intentions, applying the principles set out hereinabove in Paragraphs 64 to 67. 

72.  Wai Ping is the only person who has witnessed the making of the Will.  Apart from Ho Senior, Wai Ping is the only family member named as beneficiary on it.  It would not be unreasonable for the Deceased to give her the Will for keeping. 

73.  The Will was dated 15 June 2003 which was also the date the Deceased set off for an unprecedented long vacation.  Wai Ping’s evidence that the Deceased made a will on that day in front of her and asked her to keep it in custody is not at all inherently improbable.

74.  Mr Chan submitted that Wai Ping is the “key witness” and “before the Court can be so satisfied beyond reasonable doubt under section 5(2), the Court need firstbe satisfied beyond reasonable doubt that she is a completely truthful and reliable witness”. 

75.  With respect to Mr Chan, I do not think this is the correct approach.  All that is required under section 5(2) is the court’s satisfaction that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.  Nowhere does the law require a person seeking to propound a will to give perfect evidence in court such that no reasonable doubt can be found in his or her evidence.

76.  Mr Chan criticized Wai Ping’s evidence as unreliable in that:

(i) It is unreasonable that the Deceased and Wai Ping did not talk about the length of the South Africa Trip during the lunch meeting on 15 June 2003;

(ii) At the lunch meeting the Deceased has given Wai Ping a brown envelope with important documents in it but they have talked nothing about it; and

(iii) It is unreasonable that since after the lunch meeting the Deceased and Wai Ping never talked about the Will, despite they have every opportunity to do so.

77.  I do not think the above criticisms rendered the evidence of Wai Ping incredible or unreliable.  I do not see the benefit for Wai Ping to give false evidence on those aspects in proving her case under section 5(2). On the contrary, I find Wai Ping an honest and credible witness who has nothing to hide from this court.

78.  I accept Wai Ping’s evidence in full, in particular, the circumstances under which the Will was made by the Deceased and their conversations during the lunch meeting on 15 June 2003. 

79.  On the other hand, I do not believe in Carmen’s evidence regarding her relationship with the Deceased. If they really maintained a harmonious relationship as described by Carmen, there is no reason why they had only telephone communications after Carmen went away from home.  There is also no reason why Carmen would stop having contact with the Deceased after 2003.  The reason given by Carmen for not moving back home upon the Deceased’s invitation is unconvincing.

80.  I find as fact that Carmen maintained no contact with the Deceased after she left a note and went away from home in about 1996.

81.  Mr Chan submitted that there is reasonable doubt that the Will was written to cater only for the contingency and risk that the Deceased would meet with an unexpected death during his long trip to South Africa.  This is the “gap will” point I have referred to earlier in this judgment.

82.  Mr Chan listed out a basket of factors[25] and suggested that normally one would expect someone in the Deceased’s then situation to make plan for the coming second half of his life and would not expect him at this stage to have a well thought out and fixed plan for the disposition of his properties at the time of his death.  If, Mr Chan submitted, contrary to general expectation, the Deceased already had such a well thought out and fixed plan to dispose of his properties, one would expect him to have his will properly prepared and written out and not to wait until less than 12 hours before he was due to depart for his long trip to write out the alleged will.  Moreover, if the Deceased really intended the Will to be his will, there is no reason why he would not fulfill the formal requirement to validate the Will after his return from South Africa as he was well aware that the signatures of witnesses are necessary.

83.  Therefore, Mr Chan submitted, it was very possible, considering all the circumstances, that somehow during the lunch on 15 June 2003 the risk of the Deceased meeting a mishap in this long trip was brought up, and therefore the need to leave instructions for the disposition of his properties if that contingency, unlikely and most unwelcome that might be, occurred.  And it was only there and then he decided to write a will to cater for that contingency.

84.  With due respect, Mr Chan’s proposition is, in my view, nothing but fanciful speculations.  Not only was there no evidence to support this proposition, it is also contradictory to what was expressed under the Will.  The Deceased was evidently, using Mr Chan’s own words, a well educated, responsible and careful person. If the Will was intended only to cater for a contingency as suggested by Mr Chan, or to last only for a definite period of time, one would expect the Deceased to have specified it clearly on the Will.  Moreover, the Deceased would make another will or get the Will back from Wai Ping or at least make sure that the Will was destroyed after his return when the contingency catered for has lapsed.

85.  Besides, by saying that the Will was intended only to cater for a contingency, Mr Chan is in effect suggesting that the Will was a conditional will.  As can be seen from the authorities mentioned above[26], a will may not be made conditional otherwise than in accordance with the conditions expressed in it. Mr Chan’s proposition is also untenable in law.

86.  In considering whether a will is valid in law, it is not for the court to judge whether the content of the will is objectively reasonable or not[27]. However, I would add here that, having accepted Wai Ping’s evidence regarding the Deceased’s feelings with Madam Wong and Carmen, and having rejected Carmen’s evidence regarding her relationship with the Deceased after she went away from home, I would not be surprised that the Deceased would decide to dispose of his assets in the way as provided under the Will. 

Grant of probate in respect of the Will

87.  The court has jurisdiction to grant probate pursuant to section 36 of the Probate and Administration Ordinance (Cap 10) which provides:

“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 section 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.”

88.  It is a matter of discretion and the discretion should be exercised judicially[28].

89.  Ms Wu submitted that Wai Ping is the proper person to be granted the letters of administration of the Deceased’s estate in that:

(1) She is named a beneficiary in the Will;

(2) She was close to the Deceased during his lifetime and has been handling the funeral matters and affairs of the Deceased after his death;

(3) She is capable and competent.  On 7 December 2009, she obtained grant of letters of administration of the estate of Ho Senior;

(4) She is honest as evidenced by the way she gives straight-forward and direct answers when being cross-examined in the Trial; and

(5) The court on the other hand should not be satisfied that the Defendant is a fit and proper person by reason of her conduct demonstrated in the Trial.

90.  I respectfully agree with Ms Wu.

91.  On the other hand, Carmen is not an appropriate person to be appointed to administer the Deceased’s estate.  As I have found as facts in this judgment, Carmen has not contacted the Deceased since after she left a note and gone away from home.  Besides, she has vigorously contested Wai Ping’s application to propound the Will and whether she will unreservedly carry the Will into effect is seriously in doubt.

Conclusion

92.  I am satisfied that there can be no reasonable doubt that the Will embodies the testamentary intentions of the Deceased.  It is deemed to be duly executed under section 5(2) of the Ordinance.

93.  I order that the Will be pronounced in the solemn form and Wai Ping be granted the probate of the estate of the Deceased.

94.  Carmen’s counterclaim be dismissed.

95.  Wai Ping’s costs in this action (including counterclaim) shall be borne by Carmen, to be taxed if not agreed.  This is a cost order nisi which will become absolute upon the expiry of 14 days from the date of this judgment.

96.  I thank counsel for their able assistance.