CHU LAI WAH v. CHU POK YIN ERIC

HCMP 352/2020

[2021] HKCFI 2836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 352 OF 2020

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REASONS FOR DECISION

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INTRODUCTION

1.  These proceedings were brought by the plaintiff, who is the elder sister of the defendant.  One Chong Yuk Moy (the “Deceased”), the natural mother of the plaintiff and the defendant, passed away on 3 March 2015, with the latest home-made will (the “Will”)  executed on 26 January 2015.  Under the Will, the Deceased bequeathed all of her properties to the defendant.

2.  By the Amended Originating Summons herein (leave to amend being given at the hearing), the plaintiff sought the determination of the court on three matters, namely:

(1)  First, a declaration that the disposition in favour of the defendant under the Will as annexed to the Grant of Probate being Grant No HCAG 006282/2015 dated 14 September 2015 is invalid and void by virtue of section 10(1)  of the Wills Ordinance, Cap 30;

(2)  Second, a declaration that distribution of the Deceased’s estate shall be made as on intestacy; and

(3)  Third, an order that the defendant do within 28 days serve upon the plaintiff and/or the plaintiff’s legal representatives a true and perfect inventory and account of the estate of the Deceased verified by affirmation, and the plaintiff and/or the plaintiff’s legal representatives be allowed to inspect all supporting documents in relation thereto.

3.  At the beginning of the hearing and by consent of the parties, I made an order in terms of paragraph 2(3)  above save that the “inventory and account” ordered was to be “interim” inventory and account, and the defendant was given 42 days instead of 28 days to render the account.  The only remaining issue in that regard was the costs of the application to seek such account.

4.  Having heard submissions from the parties, I decided to exercise my discretion in granting the declarations set out in paragraph 2(1)  and (2)  above.

5.  Further, I ordered that the costs of the application for the inventory and account be to the plaintiff to be borne by the defendant personally, such costs are to be taxed if not agreed.

6.  Reasons for my decisions at paragraphs 4 and 5 above were reserved, which I now give.

BACKGROUND

7.  The background of the case is relatively straightforward. The Deceased and Mr Chu Pang (“Father”)  had 3 children, with the plaintiff ranks the first and the defendant ranks the second.  Prior to marrying the Father, the Deceased had another marriage and there were 3 children (1 son, 2 daughters)  from that marriage.  The ex-husband of the Deceased passed away before the Deceased.

8.  The Deceased passed away in Hong Kong on 3 March 2015.  Only in around the end of 2018, the plaintiff heard for the first time from her youngest brother, Patrick, that the Deceased had left a Will.  Patrick told the plaintiff that the defendant “knows everything”. Then, at a tuen-nin dinner in around February 2019, the plaintiff asked the defendant if the Deceased had left a Will which the defendant answered in the affirmative.

9.  The plaintiff then found out about the contents of the Will.  In particular, that the defendant attested the execution of the Will notwithstanding his capacity as a beneficiary under the Will.  This is the key matter which the plaintiff takes issue with.

10.  The plaintiff has also started a chain of enquiry particularly on how the defendant has dealt with the Deceased’s estate. However, as contended by the plaintiff, the defendant has been evasive and less than forthcoming and content to give fleeting answers without proper explanation.

11.  It has resulted in the plaintiff having to issue the present proceedings.

DISPOSITION TO THE DEFENDANT UNDER THE WILL BEING VOID AND DISTRIBUTION ON AN INTESTACY

12.  First, any disposition in favour of the defendant under the Will is void as the defendant attested the Will.

13.  Section 10(1)  of the Wills Ordinance, Cap 30 (the “Ordinance”)  provides that:

“10. Avoidance of gifts to attesting witnesses and their spouses

(1)  If a person attests the execution of a will, and any disposition of or affecting any property (other than charges and directions for the payment of any debt)  is given or made by the will to that person or his spouse, that disposition shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be void.” (emphasis added)

14.  In Ho Hon Piu v Ho Hon Ka, HCA 1966/2013 (unrep, 10/01/2017)  at §55, Chow J (as he then was)  declared that the will in that case was validly executed by the deceased, but that since the plaintiff therein was a named beneficiary who attested the will, the disposition of the deceased’s entire residuary estate in favour of Hon Piu (ie the plaintiff)  under the will was void by reason of section 10(1)  of the Ordinance.  The plaintiff in that case was entitled to proceed to apply for probate of the will in the common form but the deceased’s estate shall be distributed as on an intestacy.  The court thus no doubt has the jurisdiction to grant the declarations sought by the plaintiff in the present proceedings.

15.  The crux of the defendant’s contention is that the present application is not needed because the defendant has signed a written confirmation which acknowledged that he could not be a beneficiary under the Will and deposited the same at Messrs Chow & Ho, hence there is no necessity for the plaintiff to seek the relevant relief.  In other words, there is no lis between the plaintiff and the defendant.

16.  In this regard, I agree with the plaintiff that the existence of the confirmation is neither here nor there.  It is of doubtful utility from the plaintiff’s point of view.

17.  The defendant, in paragraphs 14 and 22 of his Affirmation dated 12 August 2020, has further deposed to the fact that he “made an affirmation to the Probate Registry” and gave an undertaking to the Probate Registry that he “would be willing to give up all the Deceased’s specific dispositions to [him]” under the Will.  Yet, these affirmation and undertaking were never produced before this court.

18.  As submitted by the plaintiff, a declaration in the form of an order from the court is of course very different.  The defendant, as the executor, would certainly be held to account if he acts in any way contrary to the declaration sought and made in respect of the distribution and handling of the Deceased’s estate.  The declaration would also be of benefit to and facilitate the good and proper administration of the estate.

19.  I agree the defendant’s dubious and suspicious conduct also renders the plaintiff’s application necessary:

(1)  Between the Deceased’s death (on 3 March 2015)  and until around February 2019 (ie a total of around 4 years), the defendant had never mentioned to the plaintiff about the Deceased leaving the Will.  It was only when the plaintiff asked the defendant at the tuen-nin dinner in around February 2019 that the defendant admitted to the plaintiff that there was a Will.  One needs to remember that the Grant of Probate was obtained as early as on 14 September 2015, which was around 6 months after the death of the Deceased.

(2)  It is baffling why the defendant never mentioned about the Will or did not even bother to let the plaintiff know until the plaintiff asked of him.

(3)  It is indicative of the defendant’s tendency not to be forthcoming about matters pertaining to the Will and the administration of the estate.

20.  In short, the defendant has no reason to oppose the plaintiff’s application if he genuinely accepts that any disposition made to him under the Will is void.

21.  As a fall back, the defendant submitted that taking the plaintiff’s case to the highest, even should it be found that the defendant never clearly announced his forfeiture of the gift prior to the action, the defendant had in his Affirmation repeatedly stated his acceptance and acknowledgement that the gift towards him under the Will is void and that he would distribute all the estate of the Deceased in accordance with the Intestates’ Estates Ordinance, Cap 73.

22.  However, as pointed out by the learned editors of The Declaratory Judgment, 4^th ed, at paragraph 4-125, it “sometimes happens that after the proceedings are commenced but before judgment, the dispute between the parties comes to an end.  This will not necessarily prevent the grant of declaratory relief, if the action raised substantial issues when the proceedings were commenced”.

23.  And at paragraph 4-128, the learned editors of The Declaratory Judgment stated thus: “In deciding the utility of the declaration claimed, the court should weigh the usefulness of the declaration for the claimant as against the inconvenience and embarrassment it may cause to the defendant.  If a declaration would appear, on the one hand, to be of little benefit to the claimant and, on the other to be a cause of hardship to the defendant, it may be refused”.

24.  In the present case, the balancing exercise is overwhelmingly in favour of the granting of the declarations sought by the plaintiff.  Mr Alvin Chong, counsel for the defendant, has not put forward any inconvenience or embarrassment that the declarations may cause to the defendant.

COSTS OF THE APPLICATION FOR AN ACCOUNT

25.  I made the costs order in favour of the plaintiff because costs should follow the event, now that the defendant has agreed to provide the inventory and account sought by the plaintiff.

26.  Further, in Re Chan Kan Ying, HCMP 888/2013 (Unrep, 19/07/2017), B Chu J stated at §§ 81 and 82 that it is the duty of administrators to keep clean, clear and accurate account and to be always ready to render such account when called upon to do so, and to discharge the duty to account properly, there must be production of the relevant supporting documents and receipts, as well as proper breakdown of items.  Further, it is essential for the account to show at least the opening capital assets, details of the movements of capital assets, the present capital assets, details of income earned, and details of expenditure.

27.  Judging against such required standard, the “account” by the defendant in the email dated 14 June 2019 is clearly deficient.  In particular, no documentary proof was provided to back up the figures, and there was no explanation given by the defendant as to how he came up with the figures.

28.  In the circumstances, the plaintiff was fully entitled to apply to the court for an order to compel the defendant to render a true and perfect inventory and account of the Deceased’s estate.