CHOI CHEUNG HUNG v. LEUNG FUNG HA AND ANOTHER

HCAP 40/2022

[2023] HKCFI 2822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 40 OF 2022

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J U D G M E N T

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1.  In this case, the plaintiff (“P”) is seeking the following:

(1)  a declaration that either (a) a handwritten document of the late Ms Cheng Wai Yee Shirley (“the Deceased”) dated 27 March 2019 (“the Written Document”) or (b) a note found in the Deceased’s mobile phone dated 1 June 2019 but last saved on 7 June 2021 (“the Mobile Phone Note”) as the last will of the Deceased in solemn form;

(2)  an order that P be appointed as the administrator of the Deceased’s estate (“the Estate”) with letters of administration with the said will annexed thereto.

2.  The two defendants are the only surviving relatives of the Deceased who would be the beneficiaries of the Estate if the Deceased died intestate.

(1)  The 1^st defendant (“D1”) is the younger sister of the Deceased’s mother.  Having considered the evidence as to service adduced by P, I am satisfied that the writ of summons has been duly served on D1. No acknowledgment of service has ever been filed by D1.

(2)  The 2^nd defendant is the younger sister of the Deceased’s father.  D2 has filed an acknowledgement of service of the writ of summons, in which D2 indicated that she would not contest these proceedings.

3.  In this trial, P is represented by Mr Chester Kwan.

The Facts

4.  The following witnesses have given evidence in this trial:

(1)  P

(2)  Mr Choi Kin Wah (“CKW”, P’s younger brother)

(3)  Mr Lok Wai Kiu (Deceased’s friend)

The evidence of each of them is clear and cogent.  I accept their evidence.

5.  Based upon the documents in this case and the evidence given by the witnesses, I find the facts as set out below.

6.  P was born in 1953.

7.  The Deceased was born in 1959.  The Deceased passed away in London on 15 April 2022.

8.  P came to know the Deceased in 1979.  At that time, P had his own business, and the Deceased was P’s secretary.  They entered into a romantic relationship after knowing each other for several months, and they started to live together.  Since 1979 and until the death of the Deceased on 15 April 2022, P and the Deceased lived together just as husband and wife.  They had no child.

9.  In the Chinese New Year in 1980, P and the Deceased went back to P’s hometown in the Mainland to visit the senior members in P’s family.  P’s mother had arranged a wedding banquet.  Senior members of P’s family and relatives had attended the banquet to celebrate the wedding of P and the Deceased.  In P’s view, by having that wedding banquet, P and the Deceased had gone through a traditional Chinese wedding ceremony in the Mainland.

10.  P and the Deceased treated each other as his or her spouse.  Further, their respective families also treated them as husband and wife.   CKW would address the Deceased as P’s wife (大嫂).  P also took care of the funeral arrangements of the Deceased’s younger brother and the Deceased’s mother in 2002 and in 2017 respectively.  P treated the Deceased’s family members as his own family members.

11.  In October 2020, the Deceased asked P to accompany her to go to a law firm to make a formal will, for the Deceased wished to leave all her assets to P by will.  At that time, P declined as he thought the Deceased was still young and in good health.

12.  In August 2021, P and the Deceased started to have a long vacation in the UK.  On 20 August 2021, they arrived Glasgow.  Inside a hotel room, the Deceased told P that she made the Written Document and the Mobile Phone Note, both of which recorded her wishes to leave all her assets to P upon her death.  The Deceased showed the Mobile Phone Note to P by displaying the same on her mobile phone.  The Deceased also told P that she did not make any other will.

13.  The contents of the Mobile Phone Note are as follows:

“本人 [Deceased’s name, HKID Number, and Passport Number]

本人身故後, 請將本人名下的財產全部贈予 [P’s name and HKID number]

立遺囑人

[Deceased’s name]

2019年6月1日”

14.  The Deceased told P that the Written Document was stored in a metal box (“the Metal Box”) at their residence in Hong Kong (“the HK Residence”).  The Metal Box was used for keeping personal documents. P had not opened the Metal Box since about July 2018.

15.  In October 2021, P and the Deceased visited CKW and his wife in Birmingham.  In CKW’s home, they had a chat.  In that chat, CKW’s wife suggested to the Deceased that if the Deceased would purchase any immovable property in future, she should register the property under her name only.  The Deceased expressed a different view and said that she would register the property under the joint names of P and herself.  CKW’s wife reiterated her own view and had some emotion.  The Deceased then mentioned that she had made a will leaving all her assets to P (“the Birmingham Exchanges”).

16.  On 10 March 2022, when P and the Deceased arrived London, the Deceased unexpectedly fell ill.  She was soon diagnosed with liver cancer, and passed away on 15 April 2022.

17.  After the death of the Deceased, P went back to the HK Residence and found the Written Document inside the Metal Box.  The contents of the Written Document are as follows:

“本人[Deceased’s name and HKID Number]身故後, 所以本人名下的財產均歸 [P’s name and HKID number] 所有, 立此為據。

立約人: [Deceased’s name]

簽名: [signed]

日期: 2019年3月27日”

18.  According to P, the handwriting on the Written Document is the Deceased’s own handwriting, and the signature on the Written Document is the Deceased’s signature.  Being the de facto husband of the Deceased for decades, P must be familiar with the Deceased’s handwriting and signature.  I have no reason to doubt P’s evidence.

19.  The signature on the Written Document is very similar to the one on an insurance policy signed by the Deceased on 10 January 2018.  This is a further piece of evidence confirming that the signature on the Written Document is indeed the Deceased’s signature.

20.  P’s solicitors have made enquiries through the Hong Kong Law Society as to the existence of any other will made by the Deceased in any law firm.  There is no reply from any other solicitors.

21.  The Estate consists of around HK$1.54m in her HSBC bank accounts.

22.  As mentioned in [2] above, D1 and D2 are the only surviving relatives of the Deceased who would be the beneficiaries of the Estate if the Deceased died intestate.

The principles

23.  A person who propounds a will bears the legal or persuasive burden of proving the following on the balance of probabilities[1]:

(1)  there was due execution;

(2)  the testator was of testamentary capacity; and

(3)  the testator knew and approved of the contents of the will.

24.  There are some formal validity requirements in s.5(1) of the Wills Ordinance (“WO”).  It is required that (a) the will be in writing and signed by the testator, (b) it appears that the testator intended by his signature to give effect to the will, (c) the signature was made or acknowledged by the testator in the presence of two or more witnesses at the same time, and (d) each witness attests and signs the will or acknowledges his signature.

25.  S.5(2) of WO provides:

“(2) 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.”

26.  The standard of proof in s.5(2) of WO 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. There is no requirement of “substantial compliance” with the s.5(1) formalities before s.5(2) of WO can be applicable.[2]

27.  On the issue of testamentary capacity, the following questions should be satisfactorily answered[3]:

(1)  whether the deceased was capable of understanding the nature of the act of making the will and its effects;

(2)  whether the deceased was capable of understanding the extent of the property of which he was disposing; and

(3)  whether the deceased was able to comprehend and appreciate claims to which he ought to give effect.

28.  In considering knowledge and approval, the correct (or more preferable) approach is to ask a single question of whether the testator understood what was in the will when he signed it, and what its effect would be, and considered that question in the light of all the available evidence and the inferences to be drawn from that evidence.[4]

29.  Ultimately, the court is required to apply a commonsense judicial judgment based on the whole of the evidence.[5]

30.  With all these principles in mind, I consider the issues in this case.

The Written Document

31.  It is obvious that the Written Document does not satisfy the requirements in s.5(1) of the WO.  P is relying upon s.5(2) of the WO.

32.  In my judgment, the Written Document indeed embodying the testamentary intention of the Deceased, and s.5(2) of the WO is applicable.

(1)  Based upon the facts as found by this court, the Written Document was written by the Deceased and signed by her.

(2)  The meaning of the Written Document is plain and clear, ie upon the Deceased’s death, all the Deceased’s properties are to be given to P.

(3)  The fact that the Written Document was dated and signed shows that the Deceased intended the document to take effect. Further, the Deceased placed the Written Document inside the Metal Box, which was used to keep personal documents.  This indicates that that the Deceased treated the Written Document as a serious and important document.[6]

(4)  On 20 August 2021, the Deceased informed P in private the existence of the Written Document and the Mobile Phone Note, and told P that it had been recorded in the Written Document and the Mobile Phone Note that the Deceased wished to leave all her assets to P after her death.

(5)  In the Birmingham Exchanges, the Deceased again confirmed her wishes.  In those exchanges, the Deceased was in fact having a debate with CKW’s wife.  I have no doubt that the Deceased was expressing her wishes with a clear mind and firm attitude in those exchanges.

(6)  It is natural and understandable that the Deceased wished to leave all her assets to P, for P and the Deceased had been treating each other as the de facto spouse for more than 40 years.  They were indeed husband and wife in the eyes of their respective family members and friends.

(7)  There is no evidence showing that before her death on 15 April 2022, the Deceased suffered from any impairment in her mental or cognitive capabilities at any time.

33.  The evidential burden to raise the issue of want of testamentary capacity or knowledge and approval is on the defendants, if they intend to challenge the Written Document as the Deceased’s will.[7] No such issue has been raised.

34.  Further and in any event, for the same reasons stated in [32] above, I am of the view that the Deceased did have the necessary testamentary capacity, and she knew and approved the contents of the Written Document.

35.  In my judgment, P is entitled to have an order to propound the Written Document as the last will of the Deceased.

The Mobile Phone Note

36.  In my view, the Written Document and the Mobile Phone Note bear the same meaning.

37.  Again, it is plain that the Mobile Phone Note does not satisfy the requirements in s.5(1) of the WO.  As to whether the Mobile Phone Note should be regarded as “a document” for the purpose of s.5(2) of the WO, I am of the view that this is not an easy question.

38.  Mr Kwan submits that the Mobile Phone Note can be regarded as “a document” for the purpose of s.5(2) of the WO.  He submits that:

(1)  In s.3 of the Interpretation and General Clauses Ordinance, “document” is defined as “any publication and any matter written, expressed or described upon any substance by means of letters, characters, figures or marks, or by more than one of these means”.

(2)  For the purpose of discovery in civil litigation, it is now recognized that electronic files are “documents”, which are subject to discovery.

(3)  By specifically allowing any “document” embodying the testamentary intentions of the deceased person to be capable of being proven as a will under s5(2) of the WO, the legislature has elected to keep the door open for a will to be made in a form that can be commonly understood as a “document” – the essence of which is the conveyance of information.  It follows that when society has evolved to such an extent that electronic files are commonly regarded as “documents”, there is no reason not to recognize an electronic file as capable of being a valid will under s.5(2) of the WO.

39.  There is force in Mr Kwan’s submissions.  However, if an electronic file can be regarded as “a document” under s.5(2) of the WO, then an audio recording or a video recording capturing some oral expressions of a testator recorded in an electronic file may also be regarded as “a document” for the purpose of s.5(2) of the WO.  However, as shown in the papers relating to the legislative history of s.5(2) of the WO, it had been expressly made clear that the purpose of introducing s.5(2) of the WO was not to permit any oral will.

40.  As to whether the Mobile Phone Note should be regarded as “a document” for the purpose of s.5(2) of the WO, I refrain from making a ruling on this question in this judgment, and would leave the issue open.  There is no need for me to resolve this question in this case, for the meaning of the Written Document is same as the meaning of the Mobile Phone Note.  The outcome of this case would not be affected by the answer to the question.

41.  I treat the Mobile Phone Note as a piece of evidence confirming the testamentary intention of the Deceased as recorded in the Written Document.

Appointing P as the administrator

42.  S.36 of the Probate and Administration Ordinance (“PAO”) 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.” (Emphasis added)

43.  No executor is appointed in the Written Document.  Accordingly, I am of the view that it would be necessary for me to exercise the discretion conferred upon me by s.36 of the PAO to appoint an administrator of the Estate.[8] I agree with Mr Kwan that P should be appointed as the administrator, for P is the sole beneficiary of the Estate, and the application is not opposed by either D1 or D2.

Disposition

44.  I making the following order:

(1)  there be a declaration that the Written Document be propounded in solemn form as the last will of the Deceased;

(2)  P be appointed as the administrator of the Estate with letters of administration with the said last will annexed thereto.

45.  Mr Kwan does not seek costs.  There be no order as to costs.

46.  I thank Mr Kwan for the helpful assistance provided to the court.