WONG TUNG WAI v. WONG TUNG PO

HCAP 3/2017

[2023] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 3 OF 2017

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DECISION

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INTRODUCTION

1.  On 12 May 2023, I handed down judgment in this matter, wherein I dismissed the Plaintiff’s claim against the Defendant following trial. This decision on costs is to be read together with that earlier judgment [2023] HKCFI 1240 (“May Judgment”), and abbreviations and nomenclature therein are adopted here.

2.  In paragraph 134 of the May Judgment, I made an order nisi that costs should be to the Defendant, to be taxed if not agreed. By summons dated 24 May 2023, the Plaintiff applied to vary the order nisi, seeking instead an order that the Plaintiff’s costs in the action (including the costs of the present application) be paid out of the estate of the Deceased.

3.  The matter came before me on 4 September 2023. At the hearing, Mr Alexander Cheung, Counsel for the Plaintiff put forward two arguments, suggesting that either the Plaintiff’s costs should be paid out of the costs of the estate, or that there should be no order as to costs. Mr Ken To, Counsel for the Defendant, resisted and urged the Court to maintain the prior costs order.

RELEVANT LEGAL PRINCIPLES

4.  Both parties have referred to the dicta in Nina Kung v Wong Din Sin (2006) 9 HKCFAR 800 at paragraph 12, where Hon Ribeiro PJ stated:

“Accordingly, the general rule where opposition to a will is unsuccessful is that costs follow the event. However, if the case can be shown to fall into one or other of the two exceptions, the order is, in the first category (where the litigation is caused by the conduct of the testator or the residual beneficiary) for the costs to come out of the estate; and in the second category (where circumstances lead reasonably to an investigation of the will's validity) for there to be no order as to costs. I shall refer to these two categories as ‘the first exception’ and ‘the second exception’ respectively.”

5.  In discussing the first exception in paragraph 22 of the same judgment, Hon Ribeiro PJ gave examples of conduct of the testator that might justify an order that the parties’ costs be borne by the estate:

“(a) the testator had left two documents which required the court's ruling as to whether one was intended to revoke the other or whether they were to be read together as the will;

(b) the testator had created a situation which he recognized would give rise to ‘a confounded row after [his] death’, but decided to leave the rival claimants to ‘fight it out’;

(c) the testator's way of life, erratic conduct and violent language gave grounds for thinking that he was of unsound mind;

(d) the testator's repeated oral complaints about having been pressured to change his will (which were found to be ‘duplicitous’) gave rise to litigation concerning undue influence; and

(e) the testatrix left a will with ambiguous language making it unclear what were the conditions for a particular gift to take effect.”

6.  Mr To further referred the following dicta of the Court of Appeal in Cheung Wai Lan v Kwok Chung Chee (CACV 128/2014, unreported judgment dated 15 April 2015) at paragraph 77:

“The starting point and general rule where opposition to a will is unsuccessful is that costs would follow the event. The general rule is subject to two exceptions. The first exception is where the conduct of the testator or the residual beneficiary was the sole or dominant cause of the litigation and the appropriate costs order in this situation is for the costs to come out of the estate. The second exception is where circumstances lead reasonably to an investigation of the will’s validity and in such cases, there would be no order as to costs. However, even if a case fell prima facie within one of the exceptions, if opposition to the will goes beyond putting the proponent to strict proof of its validity and involved fundamentally hostile litigation, such as where the opposing party took it upon himself to establish a positive case of forgery, fraud or undue influence, the general rule is likely to apply, as implicitly recognised in Order 62 rule 6(1)(c) of the Rules of the High Court. Lastly, the operation of the two exceptions is subject to a further qualification that the courts do not approve of ill-considered and precipitous decision to litigate in opposition to a will and the opponents must have taken all proper steps to inform themselves as to the facts of the case before undertaking the proceedings if they are to take themselves out of the general rule of costs following the event.”

7.  The balance of that decision at paragraphs 78 to 87 is also instructive, in that it discusses the scenario where circumstances were such that on the one hand, they reasonably led to an investigation of the validity of the will in question, but on the other hand, the steps taken by the losing party had crossed the line, going beyond putting the plaintiff to strict proof and instead become ‘hostile litigation’. In those circumstances, the Court of Appeal came to the conclusion at paragraph 87 that:

“In light of our ruling that the circumstances here do lead reasonably to an investigation of the validity of the 2008 Will, we think it just and fair that as the plaintiff would have to incur some costs to prove his case positively on knowledge and approval and to dispel suspicion, both parties should bear their own costs to the extent of such an investigation. So the net result would be no order as to costs for that portion of the proceedings attributable to the necessary investigation, and the defendant should pay the plaintiff the costs of the remainder of the proceedings as he had crossed the line in putting the plaintiff to strict proof and conducted a hostile litigation.”

DISCUSSION

8.  As discussed in the May Judgment, in bringing the case, the Plaintiff:

(1)  Asserted that the Deceased did not have the requisite testamentary capacity to make the 2^nd Will; and

(2)  Made a further allegation that there had been undue influence by the Defendant in procuring the Deceased to execute the 2^nd Will.

9.  At trial, the parties placed before the Court various items of evidence, including the medical records, the report of the social worker, expert evidence (for both sides), video recordings, and witness evidence. In the course of the action and at trial, each side had made extremely serious allegations against the other of mistreatment of the Deceased, amongst other things.

10.  Following the trial, I found that the Deceased did have the requisite testamentary capacity, and that there was no merit at all in the undue influence claim.

11.  Having considered the parties submissions on costs, I have the following observations.

12.  I do not consider that the circumstances of this case fall within the first exception. As is apparent from the May Judgment, whilst the Deceased did have a tendency to “play to the audience” and change her tune depending on who she was speaking to (paragraph 107(3) of the May Judgment), I do not consider that this was simply a case where her conduct was the “sole or dominant cause” of the litigation.

13.  There is no question that a significant proportion of the trial should be considered hostile litigation:

(1)  The Plaintiff did much more than simply putting the Deceased to proof of the 2^nd Will. Not only did he make a positive assertion that there had been undue influence, but he also called his own expert to speak to the Deceased’s testamentary capacity. Much time was spent exploring the allegations of the Plaintiff against the Defendant regarding his alleged ‘brainwashing’ of the Deceased. Further, counsel also attempted to pursue unpleaded cases of fraudulent calumny, as well as taking issue with the Deceased’s knowledge and approval of the 2^nd Will.

(2)  Having initiated the litigation, the Plaintiff found himself facing various serious allegations from the Defendant, including that of mistreatment of the Deceased (hitting her, mistreatment in terms of toileting arrangements at home, calling her names, etc.), as well as further allegations that he had tricked the Deceased into gifting him the Kwun Tong Property in 2012. Substantial time was spent at trial exploring these allegations.

14.  It seems to me the severity of the allegations on both sides, and the animosity between the brothers themselves, fueled the litigation as much as, if not more than, the Deceased’s actions in making the 2^nd Will (and not telling the Plaintiff she had done so). As such, the Deceased’s conduct can hardly be considered “the sole or dominant cause” of the litigation.

15.  There is some merit, however, in the argument that the objective circumstances did raise a reasonable question as to whether the 2^nd Will was validly executed, and thus partially falls within the second exception.

16.  I bear in mind in particular the following matters:

(1)  Upon considering the chronology summarized in the May Judgment, it would be immediately apparent that in and around the time of the execution of the 2^nd Will (6 March 2014), there had been several medical reports wherein limitations on her mental capacity were noted (see discussion at Section C2 of the May Judgment).

(2)  Shortly thereafter, the various guardianship applications were filed (Section C1g of the May Judgment). All of these sought to remove from the Deceased her decision making ability and put it in others’ hands. The obvious question is whether she was of sufficiently sound mind shortly before these applications had been made to make the 2^nd Will.

(3)  Despite her old age and medical history (including of stroke), at the time of the making of the 2^nd Will, the solicitor in charge did not follow the “golden rule”. This was contrary to the clear guidance by the Court of Appeal in Au Kong Tim (paragraph 20 of the May Judgment).

(4)  Further, the 2^nd Will changed the position of distribution of the estate, excluding the Plaintiff and instead making the Defendant and Tung Fuk beneficiaries.

(5)  Shortly before the execution of the 2^nd Will, the Deceased had taken various steps under the accompaniment of the Defendant to apply for legal aid in relation to the proposed claim as to the Kwun Tong Property. (Section C1e of the May Judgment). This similarly raised questions as to her intentions and state of mind in and around that time.

(6)  The Deceased passed away two months after execution of the 2^nd Will.

17.  Faced with the above circumstances, I consider that it was not unreasonable for there to be some querying of the circumstances in which the 2^nd Will was executed. Much of the information that surfaced after initiation of the action and at trial – crucially, the video recordings, the various records regarding the steps taken to further legal aid applications, and the witness evidence – were not items that were all accessible to the Plaintiff prior to the commencement of proceedings. As such, it seems to me there is a proportion of the proceedings that are attributable to “necessary investigation”.

18.  Taking matters in the round, I would apportion approximately 15% of the total costs of the proceedings as being attributable to the necessary investigation. I therefore vary the original costs order to the effect that the Plaintiff should pay the Defendant 85% of the costs of the action, to be taxed if not agreed. As to the costs of this application, whilst the costs order was partially varied, the relevant arguments only arose because of the underlying dispute to begin with. I consider it fair in the circumstances of this case that the same proportions shall apply, and thus the Plaintiff shall pay the Defendant 85% of the costs of this application, to be taxed if not agreed.

19.  I thank counsel for their assistance.