CHOW LILY v. CHOW WAI WAI VIOLET AND OTHERS

CAMP 202/2021

[2022] HKCA 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2021

(ON AN INTENDED APPEAL FROM HCAP NO 22 OF 2019)

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JUDGMENT

(ON THE RENUNCIATION ISSUE)

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Hon Kwan VP:

1.  I agree with the judgment of Yuen JA.

Hon Yuen JA:

2.1  This judgment deals with a preliminary issue (“the Renunciation Issue”) which requires determination before this court can deal with the Plaintiff’s application for leave to appeal the Decision of DHCJ Leung (“the Judge”) made on 30 July 2020 dismissing her application for the appointment of administrators pendente lite (“the APL Decision”).

2.2  The issue arose due to events that have occurred after the APL Decision, but as the issue is one of law, it would save time and costs for this court to determine it instead of sending it to the Court of First Instance for decision.

Background

3.  On 29 October 2015, Chow Yei Ching (“the Deceased”) signed a document which was, on its face, his Will (“the 2015 Will”)¹.  In January 2016, he suffered a stroke.  On 29 July 2018, he died leaving his wife and 7 children.

4.1  The 2015 Will is challenged in HCAP 22/2019 (“the Probate Action”) by the Deceased’s eldest daughter Lily, who alleges that the Deceased had executed it without knowledge and approval of its contents, and/or without the requisite testamentary capacity, and/or without the requisite animus testandi.  She is seeking an order to admit to probate a copy of a document which was on its face, a Will dated 27 April 2009 but on which copy the Deceased’s signature does not appear (“the 2009 Will”)², alternatively for a declaration that the Deceased died intestate. 

4.2  It would appear from the court file that the Probate Action is being actively pursued, but no date has yet been fixed for trial. 

Executrixes and substitutions named in the 2015 Will

5.1  In Clause 2 of the 2015 Will, the Deceased appointed (i) his wife (referred to in the APL Decision as “the Mother”), (ii) his daughter Violet, and (iii) his daughter Vi Vi to be the executrixes and trustees of his Will. 

5.2  Clause 2 went on to say as follows:

“in case any one or more of them shall ... renounce probate or refuse ... to act in the office of executrix or trustee then I appoint by substitution my daughter CHOW, LINA ..., my daughter CHOW, LILY ... and my daughter CHOW, LISA ... strictly in the order named aforesaid to fill any vacancy in the office of executrix or trustee hereof that may occur thereby”.

6.  On 30 October 2018, the Mother, Violet and Vi Vi applied for probate³.

Probate Action

7.  However, on 10 May 2019, Lily commenced the Probate Action, with Violet, Vi Vi and the Mother as 1^st, 2^nd and 3^rd defendants respectively. 

Summons to appoint administrators pendente lite

8.1  On 15 July 2019, Lily filed a summons for an order to appoint two accountants as joint and several administrators pendente lite (“the APL summons”)⁴. The summons was opposed by the defendants.

8.2  The summons was heard by the Judge on 30 October 2019. Judgment was reserved.

Renunciation by the Mother

9.  During this period, on 2 July 2020, the Mother renounced her right and title to probate and execution of the 2015 Will⁵.  Under Clause 2 of the 2015 Will, Lina became the substituted executrix in the second degree⁶.

The APL Decision

10.  On 30 July 2020, the Judge dismissed the APL summons.  It would appear from the Decision that the Judge had not been made aware of the Mother’s renunciation.

Lily’s summons in CFI for leave to appeal

11.  On 13 August 2020, Lily filed a summons in the Court of First Instance for leave to appeal the APL Decision.  Directions were given for written submissions.

Renunciation by Lina

12.1  In the meantime, on 19 November 2020, a master granted leave to Lily to discontinue her claim against the Mother on the ground of the latter’s renunciation, and to substitute Lina as the 3^rd defendant.

12.2  However, subsequently on 27 April 2021, Lina also renounced her right and title to probate and execution of the 2015 Will⁷.  Under Clause 2 of the 2015 Will, Lily then became the substituted executrix in the third degree.

The Judge’s refusal of leave to appeal the APL Decision

13.  On 14 May 2021, the Judge refused leave to appeal the APL Decision.  In §3 of this decision, the Judge referred to the Mother’s renunciation and Lina’s joinder as the 3^rd defendant, but did not refer to Lina’s renunciation.  Presumably, the Judge had not been made aware of this renunciation either⁸.

Lily’s summons to CA for leave to appeal

14.  On 28 May 2021, Lily filed a summons in this court for leave to appeal the APL Decision.  Written submissions were filed on 28 May 2021 and 11 June 2021.

Amendments to pleadings after Lina’s renunciation

15.  On 24 June 2021, a master gave leave to Lily to discontinue her claim against Lina after the latter’s renunciation. Amendments were then made to the parties’ respective pleadings which gave rise to the issue of renunciation.

16.  On 29 June 2021, Lily filed a Re-Re-Amended Statement of Claim (“Re-Re AmSOC”)⁹ adding the following new paragraphs.

“20A. On 27 April 2021, by way of a Renunciation of Probate of even date, Lina renounced her right and title to probate and execution of the Will (being the 2015 Purported Will) of the Deceased. Consequently, without in any way accepting or admitting the validity of the 2015 Purported Will, Lina has since been substituted by Lily as executrix of the 2015 Purported Will pursuant to Clause 2 thereof.

20B. For the reasons pleaded hereinbelow, Lily does not admit the validity of the 2015 Purported Will, and for that reason Lily would not, and does not, intend to accept the office of executrixship of the 2015 Purported Will pending judgment of the Court in this Action. However, if, contrary to the contention of Lily, it is held by the Court in this Action that the 2015 Purported Will is a valid will of the Deceased, and the Court pronounces the same in solemn form for its force and validity, Lily expressly reserves her right to accept the appointment as executrix in accordance with Clause 2 of the 2015 Purported Will”. (Emphasis added).

17.  On 27 July 2021, Violet and Vi Vi filed a Re-Amended Defence and Counterclaim (“Re-AmD&CC”)¹⁰ in which the following were pleaded in defence to §§20A-B of the Re-Re AmSOC:

“44A. Save and except that Lina renounced her right and title to probate and execution of the Last 2015 Will on 27 April 2021 and Clause 2 of the 2015 Will provides for substitution of the executrixes and trustees of the Estate and the Plaintiff comes after Lina in the order of substitution set out therein, paragraphs 20A and 20B are denied. The 1^st and 2^nd Defendants further repeat paragraph 95 below”.

“95. The 1^st and 2^nd Defendants further aver that the Court should not exercise its power to appoint, and accordingly seek an order, that Lily should not be appointed an executrix or trustee of the Estate, whether under the Last 2015 Will, or alternatively, the Handwritten Note¹¹ in any event, by reason of (i) her conduct in acting contrary to the testamentary intentions of the Deceased and the interest of the Estate in disputing or challenging the validity of the Last 2015 Will and seeking the Declaration that the copy of the 2009 Purported Will be admitted to probate or that the Deceased had died intestate, notwithstanding that the Last 2015 Will had clearly been duly executed by the Deceased with testamentary capacity and knowledge and approval of the contents and further with the Handwritten Note as evidence; and (ii) that it is otherwise necessary or convenient that Lily should not be appointed as an executrix or personal representative of the Estate; and accordingly that only the 1^st and 2^nd Defendants be appointed and constituted executrices and trustees of the Estate”.

18.  On 23 August 2021, Lily filed a Re-Amended Reply and Defence to Counterclaim (“Re-AmR&DCC”)¹².  There was no specific denial of §44A of the Re-AmD&CC but the following was pleaded in reply to §95:

“27A. As to paragraph 95:

(a) It is denied that Lily’s conduct in these proceedings amounts to acting contrary to the testamentary intentions of the Deceased and/or the interest of the Estate and/or it is otherwise necessary or convenient to pass Lily over as executrix of the Estate.

(b) The present action seeks the Court’s determination of the validity of the 2015 Purported Will as the last and valid Will of the Deceased. The 1^st and 2^nd Defendants have the legal burden to prove that the same had been executed by the Deceased with full knowledge and approval of its contents and/or with the requisite testamentary capacity in any event. The plaintiff is entitled to require the 1^st and 2^nd Defendant[s] to discharge their burden to prove the 2015 Purported Will as the last and valid Will of the Deceased before the same is admitted to probate.

(c) In asking for the 2015 Purported Will to be properly proved in this action, the plaintiff in no way acts contrary to the testamentary intentions of the Deceased and/or the interest of the Estate. To the contrary, it is in the interest of the Estate to have the testamentary intention of the Deceased properly ascertained and proved to ensure that his estate would be properly administered and distributed in accordance with his testamentary intention”.

The Renunciation Issue

19.1  Subsequent to the Mother’s and Lina’s renunciations, I gave directions to the parties to agree, and failing agreement, to file evidence, on the state of the executrixship.  The parties were unable to agree, and on 4 February 2022, Lily’s solicitor filed an affirmation on her behalf, and Vi Vi filed an affirmation on behalf of herself and Violet.

19.2  In the solicitor’s affirmation, it is said (among other things) that “it is the Plaintiff’s position since the renunciation of Lina that, in the event the Court in HCAP 22/2019 pronounces the 2015 Purported Will in solemn form for its force and validity, the Plaintiff has a strong intention to accept the appointment as executrix”.  That was opposed in Vi Vi’s affirmation.

19.3  Consequently, on 7 February 2022, I gave directions to the parties to file written submissions on the Renunciation Issue:

“Whether the plaintiff’s position pleaded in para.20B of the [Re-Re ASOC] ... should be regarded in law as a renunciation”.

19.4  Following the parties’ submissions filed on 21 February 2022, I gave further directions on 8 April 2022 for submissions in reply which were filed on 14 and 25 April 2022 respectively. 

19.5  It is obvious why the Renunciation Issue should be decided before the application for leave to appeal the APL Decision can be determined.  In any application for appointment of administrators pendente lite, the identity of the executors and their working relationship with one another would obviously be considered by the court as affecting their ability to co-operate in the administration of the estate.  Further, if Lily has renounced executrixship, then the 2015 Will provided that Lisa would become the substituted executrix in the fourth degree.

Submissions on the Renunciation Issue

20.1  It was submitted on Lily’s behalf that:

(1)  she did not and continues not to have an intention to renounce;

(2)  she has not expressly renounced her right and title to probate of the 2015 Will and there is no principle of implied renunciation; and

(3)  even if it were suggested that she had renounced, she “hereby clarifies” that she has no intention of renouncing if the 2015 Will was proved in solemn form.

20.2  It was submitted on behalf of Violet and Vi Vi that:

(1)  Lily’s position as set out in §20B of the Re-Re ASOC is absolute and not conditional, and constitutes an express renunciation in law;

(2)  in any event, Lily’s conduct amounts to an implied renunciation, relying on Banyard v Duirs [2013] WASC 146, a judgment in the Supreme Court of Western Australia; and

(3)  the Probate Action is hostile probate litigation, in which Lily has taken it upon herself to establish a positive case challenging the validity of the 2015 Will.  That position is repugnant to the recognition of the office of executrix, and is inconsistent with a reservation of a right to take up that office. 

Discussion

21.  The following law is well-established:

(a)  at common law (as confirmed by the Court of Appeal in Nativivat v Nativivat [2013] 4 HKLRD 340 at §32), an executor’s right and title to probate and execution derives, not from the grant of probate by the court, but from the will; the grant of probate is simply the evidence of that right and title;

(b)  thus, an executor (so long as he has not intermeddled) can renounce the office of executorship as soon as the testator dies (Williams, Mortimer & Sunnucks §6-53);

(c)  an executor may expressly renounce executorship under s.29(2) PAO which provides “such renunciation may be made orally on the hearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn”;

(d)  an executor may also be deemed under s.30 PAO to have constructively renounced executorship if (i) he has neither applied for probate nor renounced executorship; (ii) he has been issued with a citation by any person claiming any interest in the estate calling upon him to accept or renounce executorship; and (iii)(1) he defaults in appearance to the citation, or (2) having appeared, he does not proceed to apply for probate or does not prosecute his application with reasonable diligence and further fails to apply for and obtain probate within the time limited by an order obtained by the person citing him;

(e)  where 2 or more persons are named as executors in a will, they do not need to apply for probate together; one alone may apply for probate, the court reserving the power to make a double grant to the other(s) if they apply later.  Although there is no express provision for this power in the PAO, it is recognized in s.27(1) and s.54(2) of the Ordinance;

(f)  under s.3 PAO, the ultimate power whether (or not) to grant probate to a person named as executor in a will lies with the court.

Express renunciation?

22.1  The first question in the present case is whether Lily’s pleadings in §20B of the Re-Re ASOC amount to an express renunciation.  This question is not answered by an assertion of her subjective intention, but by an objective consideration of the requirements for an express renunciation. 

22.2  Section 29(2) PAO provides that an express renunciation may be made either orally in a specific circumstance (which does not apply to this case), or “in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn”.  In the present case, Lily has signed the Statement of Truth (“I believe that the facts stated in this [Re-Re ASOC] are true”) but it was not attested by a solicitor or by any person before whom an affidavit may be sworn.  The defendants seek to rely on her solicitors’ signature on the pleadings, but it is clear that they signed at the end of the pleadings to fulfill the procedural requirement of Order 18 rule 6(5) Rules of the High Court (“every pleading must be signed by counsel if settled by him, and if not, by the party’s solicitor …”), and not to attest Lily’s signature.

22.3  Accordingly, I do not consider that Lily’s pleadings in §20B of the Re-Re ASOC amount to an express renunciation.

Constructive renunciation?

23.  As Lily has not been issued with a citation under s.30 PAO, no issue of constructive renunciation has arisen.  It is noteworthy that (as observed by the annotators of the PAO in the Annotated Ordinances of Hong Kong at [29.01]) there is no legislation in England which corresponds exactly to this section, at least not under the term “constructive renunciation”. However, the English legislation similarly provides that a person may call upon an executor to take action by issuing a citation to him.  The executor may then renounce (Tristram and Coote’s Probate Practice 32^nd ed §24.78), or enter an appearance and apply for probate with reasonable diligence failing which the citor may apply for a grant to be made to himself (§24.86).  See also Williams, Mortimer & Sunnucks, §6-47. 

“Implied renunciation”?

24.  That leaves us with the question whether in Hong Kong, the principle of implied renunciation exists, and if so, whether Lily’s conduct amounts to implied renunciation.  The defendants have referred this court to Banyard, which is a judgment of Heenan J in the Supreme Court of Western Australia.

25.1  In Banyard, the deceased had natural, adopted and foster children.  She made a will appointing an adopted child Anne and a foster child Eric as joint executors.  Anne applied for grant of probate in solemn form.  Eric, asserting that the deceased lacked testamentary capacity at the time the will was made, declined to apply for probate and in fact, opposed grant of probate.  He ceased his opposition shortly before the hearing, leaving the action undefended, but he did not make a formal renunciation, nor had he been cited to prove or renounce.

25.2  Heenan J referred to his earlier judgment in Scarpuzza v Scarpuzza [2011] WASC 65, and held that “… where [Eric] has declined to take any step to join in with [Anne] or to apply on his own behalf to seek probate of this will and where he has opposed a grant of probate in the non-contentious jurisdiction, I consider the only inference to draw is that he has indicated an unwillingness ever to act as executor and that this amounts to implied renunciation” (emphasis added).

26.1  In Scarpuzza, the deceased named 3 executors in his will, including a Mr Dyson who was a former accountant, family friend and adviser.  The judge found on the facts that the will was validly executed by the deceased. 

26.2  Prior to trial, Mr Dyson, who had entered an appearance to the action in person, sent an email to the plaintiffs’ solicitor saying that he (Mr Dyson) agreed to accept the decision of the court.  The solicitor then sent a form of renunciation to Mr Dyson for execution, but it was not returned.  Instead, in a subsequent email, Mr Dyson wrote “Will sign and send in (must admit I thought I had already done so)”.  Despite this, no form of renunciation or other signed document or communication was received from him. 

26.3  The judge posed the question whether or not “the inaction of [Mr Dyson] coupled with his notification of a willingness to abide by the order of the court amounts to a waiver or abandonment of his right to seek a grant”.  He then considered a number of cases (discussed below) and concluded that “it [renunciation] may be implied by conduct which sufficiently indicates a refusal to accept” [§47].  He then decided that the “only conclusion” which should be drawn from Mr Dyson’s inaction in applying for a grant and his failure to file a defence or counterclaim jointly with the other executors “should be an implied renunciation of his right to obtain probate as a co-executor” (emphasis added) [§49].

Disclaimer of trusteeship

27.  The cases Heenan J referred to were Re Gordon (1877) LR 6 Ch D 531, Re Clout & Frewer’s Contract [1924] 2 Ch 230, and Re Schar [1951] Ch 280.  It will be seen below that they all dealt with situations of disclaimer of trusteeship.

28.  In Re Gordon, B was named as executor and trustee under the will of the deceased who died in 1867.  B renounced probate but did not disclaim trusteeship.  However, he did not act as trustee at all and died in 1871.  It was held that there was sufficient evidence of disclaimer of trusteeship (p.534).

29.1  In Re Clout, the testator died in 1872 after having made a will appointing his wife E and two other persons H and C as executors and trustees.  A legacy was given in the will to H and C as compensation for their troubles.  Probate was granted to E, power being reserved to make the like grant to H and C.  In 1890 and 1901 respectively, H and C died without having renounced or disclaimed, but never having applied for probate or acted as trustees. 

29.2  The will was made the root of title in a sale of the testator’s land, and the purchaser required evidence that C had disclaimed the trust, for new trustees had been appointed while C was still alive.

29.3  After considering Re Gordon and Re Birchall 40 Ch D 436, it was held (p.236) that as C had “survived the testator for nearly thirty years without proving, acting, or applying for or receiving his official legacy”, that was “sufficient evidence that he never intended to act, and disclaimed the trusts” (emphasis added).

30.  Re Schar was a case involving the true construction of a poorly drafted deed executed by a bank which had been appointed one of the executors and trustees of a will.  It was referred to in Scarpuzza only for the proposition that “a disclaimer is best made in writing by deed poll because that places the intention of the disclaiming trustee beyond doubt” [§47].    

31.  It is clear from the above cases that they were concerned, and concerned only, with disclaimer of trusteeship.  This is a very different concept from that of renunciation of executorship, for common law has long recognized the right of a person named as trustee to disclaim the office and the estate (as long as it is done before acceptance), and the disclaimer may be by deed or by conduct (eg by conduct inconsistent with acceptance, or by inaction over a long period) (Underhill and Hayton, Law of Trusts and Trustees 19^th ed. Article 34). 

32.  Notably, there is no statutory provision for disclaimer of trusteeship.  That is in stark contrast with renunciation of executorship. As seen above, the PAO contains express provisions for express renunciation in s.29, and constructive renunciation in s.30 through the procedure of citation, which has no equivalent in the administration of trusts.  If it had been the intention of the legislature to include a common law concept of “implied renunciation” (if such exists) or to allow room for such development, one would have expected s.28(c) PAO to say “renounces probate of the will, including by express renunciation or constructive renunciation”.

33.  For the above reasons, I am not persuaded that the concept of disclaimer of trusteeship through conduct can be applied to create a new form of “implied” renunciation of executorship, or that “implied renunciation” is part of Hong Kong common law.

34.1  However, even if “implied renunciation” were to be regarded as part of Hong Kong law, Lily’s pleadings in §§20A-B of the Re-Re AmSOC do not indicate a waiver or abandonment of her right (Tristram and Coote, §15.1) ever to apply for probate as executrix, which is the crux of a renunciation (subject to the court’s power to allow a retraction of a renunciation under s.31 PAO). 

34.2  The crucial words are “Lily would not, and does not, intend to accept the office of executrixship of the 2015 Purported Will pending judgment of the Court in this Action” (emphasis added).  At most, that is a conditional renunciation, which is not an effective renunciation (Williams, Mortimer & Sunnucks, §6-50; Tristram and Coote, §15.1). 

35.1  Further, when construing the words “accept the office of executrixship”, it should be noted that (absent any intermeddling or acts showing acceptance of office: Williams, Mortimer & Sunnucks, §6-35-6-39) there is no procedural requirement that an executor must “accept” the office by doing a particular act within a particular period of time.  He may choose to do nothing, unless and until the s.30 citation procedure is invoked, or he is summoned by the court under s.8 PAO to prove or renounce probate of the will. 

35.2  In the present case, the s.30 citation procedure has not occurred.  Nor would it be necessary for the s.8 step to be taken by the court, as the other executors may prove the will without Lily’s consent or renunciation (Tristram and Coote, §4.55).  Except perhaps forensically, there is nothing to “reserve”.       

36.  This leads me to the argument advanced on behalf of Violet and Vi Vi that Lily’s position, in which she positively challenges the validity of the 2015 Will, is repugnant to the recognition of the office of executrix.  There is strength in the argument that Lily is not merely putting the defendants to proof, but is positively pursuing hostile probate litigation.  This can be seen in her Re-AmR&DCC, §27.  However, I do not think it is necessary at this stage of the proceedings for the court to consider whether this disentitles Lily from applying for probate of the 2015 Will.  The defendants have foreshadowed their opposition in §95 of the Re-AmD&CC (see §17 above).  If and when she does make such an application, it would be up to the court at that stage, after consideration of all the circumstances of the case, to exercise its power whether or not to grant her probate which evidences her right and title.

Order

37.  For the reasons set out above, I hold that the plaintiff’s position pleaded in para.20B of the Re-Re ASOC should not be regarded in law as a renunciation.  I would make an order nisi that the defendants pay the plaintiff’s costs of the Renunciation Issue.  Although the parties have provided statements of costs for summary assessment, they were not expressed to relate to this discrete issue.  Accordingly, I would direct that the plaintiff be at liberty to file and serve a statement of costs relating to only this discrete issue within 14 days.  The defendants are at liberty to respond within 14 days thereafter.  The court will then summarily assess the costs on paper.

Hon G Lam JA:

38.  I agree with the judgment of Yuen JA.