CHEUNG SO LAN v. YIM YIN MING AND OTHERS

HCAP 12/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 12 OF 2005

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J U D G M E N T

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1.  What would happen if a will cannot be found after the death of the testator even though a copy is available? This is what this case is about.  Unfortunately, it takes those interested in the estate of Lioe Ka Khie [“the Deceased”] more than two decades to find out the answer.  I hasten to say this is not meant to be a criticism of any person.  The probate action was only commenced in 2005.  Prior to that, various efforts had been made to try to resolve the matter amicably but without success.

2.  The Deceased died in Hong Kong on 3 January 1981 at the age of 83.  He was survived by a wife, the Plaintiff, whom he married in September 1964.  The Plaintiff was not his first wife.  The first wife of the Deceased died in May 1963.  The Plaintiff was 23 years younger than the Deceased.  She is now in her late eighties.

3.  The Deceased did not have any natural children, whether from his first or second marriage.  However, by the time of his marriage with the Plaintiff, he already had four adopted sons and one adopted daughter.  The only adopted child who is still alive is the 8^th Defendant.  The other adopted children have passed away since the demise of the Deceased.  But they had left issues who might have an interest in the estate of the Deceased.

4.  The Deceased was an Indonesian Chinese who, like many other successful Chinese businessmen in Indonesia, returned to mainland China in the 1950’s out of patriotism.  He held important political offices in the Guangdong provincial government.

5.  He came to Hong Kong with the Plaintiff in 1972.  Subsequently, he procured the immigration of his adopted son Lioe Kwok Tjang [“KT”] and his family to Hong Kong.  The 1^st Defendants are sons and wife of KT and they are the executors of his estate.  KT died in 1990. 

6.  The Deceased had also procured the immigration of the 2^nd Defendant to Hong Kong in 1978.  The 2^nd Defendant is the son of another adopted son, the 8^th Defendant.

7.  The 3^rd Defendant, who is now in Indonesia, is the son of yet another adopted son, the 7^th Defendant.  The 7^th Defendant died in 1993.

8.  The 4^th and 5^th Defendants are the sons of the 6^th Defendant, another adopted son.  The 6^th Defendant died in 1994.

9.  The originally named 9^th Defendant was the adopted daughter of the Deceased.  She died in 2006.  Her estate is represented by the current 9^th Defendant, her son. 

10.  The Deceased had made a will in 1976 [“the Will”] before a solicitor.  The Will made provisions to five named beneficiaries in respect of some specified assets of the Deceased in Hong Kong.  The five beneficiaries are KT and the 2^nd to 5^th Defendants.  KT was named as the executor.

11.  Thus, as far as the specified assets were concerned, KT and the other specified descendants of the other three adopted sons would benefit from a distribution under the Will.  On the other hand, the Plaintiff and the 9^th Defendant would not get anything under it.

12.  The specified assets are shares in two private companies and two landed properties in Hong Kong.  One of the landed properties, Flat C 7^th Floor Edward Mansion at Prince Edward Road [“Flat C”] was held by the Deceased in joint tenancy with the Plaintiff.  Exercising her right as the surviving tenant, the Plaintiff had assigned Flat C to her brother Cheung Ting Wai  [“Cheung”] in 1989.

13.  After the death of the Deceased, KT had tried to locate the Will for the purpose of applying for grant of probate.  He had instructed lawyers to make enquiries.  But the Will could not be found up to KT’s demise in 1990. 

14.  Since the death of KT, the Plaintiff made several attempts to obtain a grant based on the Will.  She had sworn two affidavits in 1992 and 1997 respectively deposing to the Will as the last will of the Deceased and applied for grant to administer the estate accordingly.  At para.5 of her affidavit of 23 May 1997, she specifically said,

“In between April 1976 and shortly before his death the deceased had traveled to and fro between Hong Kong and Guangzhou … to deal with his own affairs.  However he had never indicated to me that he had revoked the said will or any intention to revoke the same or to make codicil thereto or any other will or testamentary dispositions subsequent thereto.”

15.  At that stage, she obviously believed that the Will had been mislaid.  That was reflected in a letter dated 25 July 1994 from her then solicitors to Messrs Alfred Lau & Co.

16.  In November 2004, she swore another affidavit saying that she believed the original of the Will cannot be found and the presumption of destruction animo revocandi applies.  That was the first time she applied for grant on the sole basis of intestacy.

17.  This set the scene for the probate action.  At the trial, the main protagonists are the Plaintiff and the 1^st Defendants.  The other defendants are absent.  Though the 8^th Defendant had filed a defence opposing the claim of the Plaintiff that the Will had been revoked, he did not attend the trial himself.  His daughter appeared on the first day of the trial.  For reasons already given orally, I declined her request for an adjournment.

18.  The 9^th Defendant filed an acknowledgment of service on 17 October 2008 indicating that he has no intention to defend the proceedings.

19.  The 2^nd to 5^th Defendants had not filed any acknowledgment of service.  By an order dated 16 July 2008, Master de Souza directed under Order 15 rule 15 that the proceedings shall be proceeded to trial in the absence of any persons appointed to represent the estate of the 6^th an 7^th Defendants.

The law

20.  There is no disagreement between the parties on the law.  What they cannot agree is how the law is to be applied in the present circumstances.  In view of that I only need to state the law briefly.

21.  Whether a will has been revoked is a question of fact.  Usually, if it is established that a deceased had made a will, the party who seeks to contend that he died intestate bears the burden of showing that the will had been revoked.  However, in cases where a will was in the custody of a testator and it cannot be found at his death, there is a rebuttable presumption that the testator himself destroyed the will for the purpose of revoking it.  That presumption can be rebutted and the strength of the presumption varies according to the circumstances of the case.  Amongst other things, the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death and the contents of the will are relevant matters to be taken into account.  Since the ultimate question is whether the will has been revoked, the court must also examine whether the testator had any cause to revoke the will and other factors supporting as well as those pointing against a case of revocation.  The burden is on the party propounding the will to prove that the will had not been revoked. 

22.  Counsel cited several authorities for these propositions: Welch v Phillips (1836) 1 Moo PC 299, Sudgen v Lord St Leonards (1876) 1 PD 154; Allan v Morrison [1900] AC 604 and Rowe v Clarke [2005] EWHC 3068.  I do not find it necessary to go into these authorities at length except to state that I have carefully considered them. 

23.  Since we are dealing with a question of fact and the presumption is a rebuttable one, it should also be mentioned that very often the case can be resolved in a manner other than by resorting to the question of burden of proof.  As stated at para.14-29 of Williams, Mortimer & Sunnuck, Executors, Administrators and Probate  19^th Edn (2008),

“It seldom happens that cases, which set out upon legal presumptions, require to be decided on the mere presumptions.  The general circumstances of the case usually lead to a tolerably satisfactory conclusion of the real fact, either confirming or repelling the presumption.  The presumptions are to be treated as indications of inferences to be drawn and not as rigid rules.”

24.  Thus in Re Yule (1965) 109 Sol J 317, Wrangham J said,

“It was clear from the older authorities that those presumptions were not intended to be regarded as rigid statutory rules, when they would produce absurd results, but as indications of the inferences which would always be drawn by the court from a given state of evidence.  The court would approach the question by considering what was the most probable explanation of the absence of the will on the testator’s death.”

25.  That approach has been applied subsequently by Cumming-Bruce LJ in Dickson v Dickson (unreported but available on Lexis) 18 July 1984 and more recently by Judge Kay QC in Nicholls v Hudson [2007] WTLR 341.

26.  In another context but in a similar vein, Bokhary PJ said in the recent case of Stanley Ho v Winnie Ho FAMV 52 of 2008, 19 Dec 2008,

“Unless left with nothing on which to do so, courts naturally tend to decide cases on something more satisfying than the burden of proof.  They do not tend to decide cases on the burden of proof, let alone a reversal of it.  Their natural tendency is to look at the evidence as a whole, and decide on the basis of what emerges from all the evidence properly assessed.” 

Is the Will testamentary in nature?

27.  Due execution of the Will is not disputed.  However, the Plaintiff suggested that the Will was only a ploy to facilitate the process of the 2^nd Defendant’s emigration from mainland China.  Implicitly it was suggested that after that purpose had been fulfilled, the Deceased had no further use of the document and destroyed it.

28.  The Plaintiff advanced that argument based on her own evidence on what the Deceased told her when she discovered the Will on the desk of the Deceased.  She said since the document was in English she had to look up in a dictionary to find out that it was a will.  She then questioned the Deceased and asked him why her name was not on it.  The Deceased told her that it was only a document for the application of the 2^nd Defendant to come to Hong Kong and it was not a will.  The purpose of the document was to give some property to the 2^nd Defendant.  She did not pay further attention to the document and she said in the witness box she did not make any photocopy of the document. 

29.  However, in earlier documents she told a different story.  In a letter of 25 July 1994, the then solicitor for the Plaintiff wrote to the solicitor firm attending to the preparation and execution of the Will seeking information about its whereabout.  In that letter, it was said,

“We are further instructed that the original of the Will has been mislaid and is untraceable now.”

30.  It shows that at that stage, the Plaintiff had no reason to believe that the document was not intended to be effective as a will and she believed that the Will was mislaid as opposed to it having been destroyed by the Deceased with the intention to revoke the same.

31.  In an affidavit she made on 23 May 1997 she gave a different version of the event at para.4,

“In or about the middle of April 1976 one day when the deceased had returned from work he told me that he had made a will at a law firm and he then placed a document similar to the copy Will hereof on the dinning table.  He told me that he had named his son [KT] and his 4 grandsons … as his beneficiaries.  He further told me that as one of his said grandsons [the 2^nd Defendant] was residing in Guangzhou … at the material time so he would bring his will back there and with the belief that as he had named [the 2^nd Defendant] as one of his beneficiaries in his will therefore he could apply to have the said grandson emigrated to Hong Kong for inheriting his estate.  I then took the will to a nearby stationery shop and have the same be photocopied for future reference.  Afterwards I returned the said will to the deceased for him to put in his safe.  As to the photocopy I have since lost it when I moved house in or about 1981.”

She basically repeated this version of event in her affidavit of 11 November 2004 when she was represented by the solicitor currently acting for her.

32.  As opposed to the Plaintiff discovering the Will when it was placed on the desk, she said in the affidavit that it was the Deceased who voluntarily told her about it and said categorically to her that it was a will with KT and the grandsons as beneficiaries.  She did not have to look it up in the dictionary and she did not have to question the Deceased about it.

33.  According to what she said in the affidavits, the Deceased clearly intended the document to operate as a will.  He told her so.  He even told her who the beneficiaries were and that the 2^nd Defendant were to come to Hong Kong to inherit some of his estate.  She did not say in the affidavit that the Deceased only intended to use the document as a ploy to facilitate the emigration of the 2^nd Defendant.

34.  She contradicted herself as regards whether she had made a photocopy of the document.

35.  At the time when she made the affidavits in 1997, she was applying for a grant of Letters of Administration based on the Will and she deposed to the validity of the Will.  She was then advised by her own lawyer and there is nothing to suggest that her lawyer misunderstood her instructions.  The Plaintiff was unable to account for such inconsistencies in the witness box.

36.  By the time she made the affidavit in November 2004, she had already taken the stance that the presumption of destruction animo revocandi applies.  However, on the factual aspects, she still maintained what she deposed earlier in 1997.  Again she failed to account for the inconsistencies between her evidence in this affidavit and her evidence in the witness box.

37.  As a matter of inherent probabilities, the evidence of the Plaintiff in the witness box is unlikely to be true.  To begin with, the Plaintiff herself testified in the witness box that she never had anything to do with the finance of the Deceased and she was not the keeper of the household account.  She did not even know where the safe of the Deceased was.  The Deceased maintained a joint name account with someone else and she did not know whether it was KT.  Since the Will was written in English, she had not explained why she suddenly had an interest in it so that she had to look up the words in a dictionary to find out about it.

38.  Further, after she had found out from the dictionary that the document was a will, and she was so concerned about her name not being included as one of the beneficiaries that she had to confronted the Deceased about it, it is unlikely that she would simply be contented with the answer of the Deceased that the document was not a will.  That was flatly contradicted by what the Plaintiff had already found out from the dictionary.

39.  There is evidence before this court showing that the Will was intended to be a testamentary document instead of just a ploy to facilitate the emigration of the 2^nd Defendant.  Amongst the papers retrieved by KT from the belongings of the Deceased is a handwritten Chinese document at p.329 of the Trial Bundle setting out how the Deceased proposed to dispose of his properties.  The provisions in that document are largely consistent with the Will.  On the face of it, it was a document written by the Deceased as it used the first person singular in referring to the Deceased.  Though the Plaintiff does not accept the authenticity of this document, she has not produced any concrete evidence to challenge it.  Given its contents and its consistency with the Will (which was beyond dispute executed by the Deceased), I am satisfied that this document emanated from the Deceased.

40.  In my view, this document is reliable evidence of the testamentary intent of the Deceased at the time when he executed the Will before the solicitor.

41.  Actually the contents of the Will also speak for itself as regards its testamentary nature.  It contains clear provisions for the distribution of the assets of the Deceased in Hong Kong amongst the different sons or their descendants.  If it was just intended to be a document to facilitate the emigration of the 2^nd Defendant, there was no need for such detail provisions to be set out in the document.

42.  I do not believe the Deceased had told the Plaintiff that the document was not a will and that it would only be used for the application of 2^nd Defendant to emigrate from the mainland to Hong Kong.  I reject her evidence in the witness box to that effect.

43.  My finding is that she had been told about the Will by the Deceased and she knew that she was not named as a beneficiary in that Will.  That was consistent with her lack of participation in the finance of the Deceased and the management of household expenses throughout the years.  It also explained why she had left it to KT to handle the estate of the Deceased after his death.  But the circumstances under which she was so told were not the same as described by her in the witness box.

44.  Obviously, the Deceased had also told KT about the Will.  Otherwise KT would not take various steps, including engaging lawyer to assist him, in connection with locating the same with a view to obtain probate after the death of the Deceased.

45.  I hold that the Will was intended by the Deceased to be a testamentary instrument when he executed the same.

Had the Will been revoked?

46.  There is no direct evidence as to what actually happened to the Will.  It is common ground that it had been brought to the mainland in connection with the application for the emigration of the 2^nd Defendant.  Afterwards it had been brought back to Hong Kong.  But no-one can tell where the Will had been kept and after the death of the Deceased, KT had tried to locate it without any success.

47.  Contrary to Mr Ng’s submissions, there is sufficient evidence before the court to show that the Will had been in the possession of the Deceased before his demise and a reasonable search and inquiry had been made to locate the Will after his death.  KT had told his son Lau Man Ying that the Deceased   brought the Will back to Hong Kong after it had been used in mainland China for the emigration of the 2^nd Defendant.  Mr Alfred Lau, the solicitor, testified that the original of the Will had not been retained by the firm.  There is nothing to suggest that the Will was in someone else’s possession apart from the possession of the Deceased.  It is enough to show that the Will was last known to be in the possession of the Deceased and it is not necessary for the party evoking the presumption to show that the Will was no longer in existence at the time of death (see Allan v Morrsion [1900] AC 604).

48.  As regards the search and inquiry for it, the efforts of KT and that of the Plaintiff (as deposed in her affidavit of 1997 and 2004) in locating it were not disputed.

49.  As discussed above, in such circumstances there is a rebuttable presumption that the Will was revoked by the Deceased.  There are two other possibilities apart from revocation: (a) the Will had been mislaid or destroyed by accident; or (b) the Will was fraudulently removed by somebody after the death of the Deceased.  The burden is on the 1^st Defendants to establish either of these, failing which the presumption will apply.

50.  Scenario (b), fraudulent removal, involves a serious allegation against the person who is accused of doing so.  As such, the evidence supporting the same must have such cogency so as to satisfy the court that such a serious wrong had been committed, see Re H (minors) [1996] AC 563.  In the present case, even though it might be said that the Plaintiff had the opportunity to do so, I am of the view that it would be wrong to make such a finding.  It is common ground that the Plaintiff left it to KT to handle the estate after the demise of the Deceased without any protest and after the death of KT she herself applied for grant on the basis that the Will was not revoked.  If she had removed the Will for the purpose of improving her claims to the estate, it is unlikely that she would have behaved in such manner between 1981 and 2004.

51.  Coming to scenario (a), it is of course possible that a testator had mislaid his will (or even destroyed the same by accident without any intention to revoke the same).  In that event, the will would not be regarded as revoked and effect would be given to it with its contents established by secondary evidence.  That was what happened in many cases, e.g. Sudgen v Lord St Leonards (1876) 1 PD 154; Rowe v Clarke [2005] EWHC 3068 and Nicholls v Hudson [2007] WTLR 341.

52.  The question is on the evidence before me, whether I should draw the inference that this was what actually happened to the Will as opposed to the scenario dictated by the presumption.  After giving careful consideration to the matters set out below, I conclude that the presumption is rebutted and the Will had actually been mislaid instead of being destroyed by the Deceased with intent to revoke the same.

53.  There is no concrete evidence as regards how the Deceased had kept the Will.  Even though he had a safe, there is no evidence to show that he had put the Will into his safe.  Mr Miu suggested this was the natural place for the Deceased to keep his important documents and the solicitor had told the Deceased to keep the Will in safe custody.  I think it is a matter of surmise.  Though I reject the Plaintiff’s evidence as regards the lack of testamentary intent on the part of the Deceased when he executed the Will, her evidence shows that the Will was not very well kept by the Deceased.  As mentioned, her solicitor had acted on her instructions that the Will was mislaid in the letter of July 1994.  She would not have harboured such a belief if she had known the Deceased to be a person who kept all his important documents in a careful manner.

54.  Moreover, according to the Plaintiff, at the later part of his life, the Deceased was mentally unsound most of the time.  He was hospitalized for a lengthy period.  During that time, the Deceased could not have looked after his documents very carefully and it is quite probable that the Will could have been mislaid or even accidentally destroyed.

55.  The contents of the Will, when it is considered together with the Chinese document on the dispositions of the Deceased’s properties, show that it is a product of mature consideration by the Deceased about what should be done with regard to such properties upon his death.  One may ask rhetorically if the Deceased intended to revoke the Will by destroying the same, why did he keep the Chinese note? 

56.  It should be noted that it was not a disposition of all the properties of the Deceased.  His assets in the mainland were not dealt with.  They were subsequently distributed on the basis of intestacy according to a judgment of the Higher People’s Court of the Guangdong Province on 25 July 1991.  The Plaintiff is one of the beneficiaries.

57.  The Plaintiff, as a joint tenant to Flat C, had title to the property though the Chinese note showed that the Deceased wrongly believed his half share could be disposed of by will.

58.  Thus, the absence of any provision in the Will for the Plaintiff does not mean the Deceased completely disinherit the Plaintiff.  Flat C was a real and substantial provision by the Deceased for the Plaintiff.  Further, the Plaintiff agreed that she had worked as a part time nurse after she came to Hong Kong although she said she only did so for a short period.  She said she only worked full time after the death of the Deceased.  The evidence of Lau Man Ying was that the Plaintiff worked for a longer period and it was he who cooked dinner for the Deceased.  On this point, I prefer the evidence of Lau Man Ying to that of the Plaintiff.  The Deceased was aware that the Plaintiff had her own means of living.  Hence the fact that the Plaintiff, as the wife of the Deceased, was not a beneficiary under the Will is not as surprising as one may think without knowing the background. 

59.  The Chinese note also contains statement by the Deceased showing that he had some dissatisfaction in his relationship with the Plaintiff.  That provided adequate explanation to the omission of the Plaintiff as a beneficiary under the Will.  I therefore do not find it necessary to consider Lau Man Ying’s hearsay evidence on the title deeds dispute as the explanation for the same.

60.  The Plaintiff testified that she had a good relationship with the Deceased up to his death and she specifically referred to the following incidents to support her,

(a)  The disclosure of the Will to her in 1976;

(b)  The sponsorship of the Deceased to her brother’s immigration to Hong Kong;

(c)  The assurance by the Deceased that he would leave properties to her when he was hospitalized.

61.  I have already dealt with the disclosure of the Will.  It is my finding that the Will was executed with testamentary intent.  The omission of the Plaintiff as a beneficiary in the Will is itself an indicia of the relationship between the Plaintiff and the Deceased.  Further, even on her own case, the Plaintiff only found out about the Will after it was executed.  That is another indicia that the Plaintiff and the Deceased were not as close to each other as one might expect in respect of a couple.

62.  As regards the sponsorship of the Plaintiff’s brother to come to Hong Kong in 1975, I am skeptical as to whether the sponsorship came about in the manner as the Plaintiff testified.  In any event, the weight that one can attach to this incident (even considering that together with the photo taken of the Plaintiff and the Deceased with the brother) as evidence of relationship between the Deceased and the Plaintiff is considerably less than the weight one can attach to the contents of the Will and the Chinese handwritten document.

63.  Two aspects of the evidence of the Plaintiff struck me as particularly telling on the relationship between the Plaintiff and the Deceased.  When Mr Miu re-examined her, she volunteered a response to a suggestion that they quarreled with each other.  She said she did not quarrel with the Deceased.  When he shouted, she avoided him and stopped listening to him instead of agitating him.  That was in answer to Mr Miu’s question about whether there was anything happened in 1975 that might have caused him to make the Will in such a manner.  The Plaintiff’s evidence confirmed there were instances of marital discord.  Such discord is understandable but it is not the function of this court to say whether it is reasonable for the Deceased to exclude the Plaintiff as a beneficiary under the Will because of such discord.  Under our law, a testator is at liberty to act on his own idiosyncrasy and prejudice in making provisions in his own will.

64.  Another aspect of the Plaintiff’s testimony that I regard as pertinent in this context is her lack of involvement in his finance.  The Deceased had a joint name account with KT but the Plaintiff said she did not know about it.  When she testified about her not having any dealings with the finance of the Deceased, I can detect that the Plaintiff harboured a sense of grievance in that regard.  That grievance must have been aggravated by the omission to include her as a beneficiary under the Will.

65.  Mr Miu was therefore driven to submit in his closing submission that ultimately the question is whether the relationship between the Plaintiff and the Deceased had been restored.  Counsel suggested it had and that was the reason why the Deceased revoked the Will.

66.  Counsel referred to the Plaintiff’s evidence that she attended to the Deceased diligently when he was hospitalized and she had to cook meals for him twice a day.  As a result she lost much weight during that time.  The Deceased could barely recognize her and he told her he should have taken care of her instead of she taking care of him.  He said he would leave inheritance to her.

67.  On the other hand, Lau Man Ying’s evidence told a different story.  He said when the Deceased was hospitalized, he and his father visited the Deceased almost on a daily basis.  He denied that the Plaintiff had brought dinner to the Deceased everyday.  He said the Plaintiff only visited the Deceased occasionally and she was working at that time.

68.  Whilst I find Lau Man Ying to be rather contrived when he said his only purpose in these proceedings was to ensure the wish of the Deceased set out in the Will to be upheld, I find that the Plaintiff had exaggerated her effort in looking after the Deceased during his hospitalization.  I do not believe she had cooked meals for the Deceased as often as she claimed.

69.  I also reject the Plaintiff’s evidence about the conversation she had with the Deceased at the hospital on inheritance.  First, according to her own evidence the Deceased was of unsound mind by that stage and I find it hard to believe that he became lucid for a brief moment just to make that conversation.  Second, if the Deceased had actually said so, one would have expected the Plaintiff to take an active part in handling matters pertaining to application for grant instead of leaving it to be done by KT basing on the Will which she considered to be a document executed by the Deceased without testamentary intent.

70.  Moreover, if the Deceased remained of unsound mind after that lucid moment at the hospital, he could not have destroyed the Will to revoke it by himself.  He would need the assistance of other person to do so.  The Plaintiff, as the only person who was there when the Deceased purportedly had the conversation with her, was the most natural person from whom the Deceased would seek assistance.  But the Plaintiff did not suggest anything like that happened.

71.  Also, even assuming the Deceased had changed his mind and decided to make provisions for the Plaintiff in his will, it did not follow that he would wish to revoke the Will without making another will.  The natural thing to do was to have another will prepared.  Yet there is no suggestion that the Deceased had instructed another will to be made.

72.  Hence, I reject the submission of Mr Miu on change of testamentary intention on the part of the Deceased.

73.  The evidence shows that the Deceased had a better relationship with KT than the Plaintiff.  Again this is not surprising.  The Deceased had adopted KT and other children for a long time before he knew the Plaintiff.  He maintained a joint name account with KT and named him as executor under the Will.  It can be inferred that KT took care of the Deceased’s financial matters during the later part of his life.

74.  There is nothing to suggest that the relationship between the Deceased and his adopted children and grandchildren had deteriorated since the making of the Will.  I cannot find any reason why the Deceased would have wanted to revoke the Will between 1976 and 1981.

75.  The Plaintiff’s brother Cheung also gave evidence at the trial.  Part of his evidence briefly dealt with the relationship between the Plaintiff and the Deceased.  I do not find his evidence to be useful in shedding light on this issue.  First, it was very brief and not much was said about the Plaintiff’s relationship with the Deceased after 1976.  Second, if anything, his evidence shows that KT and the grandchildren were unhappy about his family residing at Flat C.  Though the Plaintiff denied that, such tension in the family could easily generate dissension between the Plaintiff (who would naturally sided with her brother) and the Deceased (who, as I said, had a close relationship with his son).

76.  Third, I do not find him to be reliable and he apparently had some interest in these proceedings over and above that of an impartial witness.  It is noteworthy that he was the person who handled the application for grant on behalf of the Plaintiff and he found a lawyer for her.  He, instead of the Plaintiff, testified on the progress of such application and the unsuccessful attempts to resolve the case by deeds of family arrangement.  He attended the trial with the Plaintiff.

77.  On 31 January 1989, the Plaintiff as the surviving joint tenant assigned Flat C to this witness.  The Assignment recorded that the transfer was at a consideration of  $650,000.  In court, the Plaintiff explained that this was not a sale to the witness.  Rather it was like a mortgage and she had borrowed about $300,000 from him.  The Plaintiff said the property was subsequently sold to others at $1 million.  But the documents showed otherwise.  After the property was transferred to Cheung, he entered into an agreement to sell it on 15 May 1989 to a company called Merry & Bright Limited at the price of $1.2 million.  But that purchaser decided to cancel the transaction on 30 June 1989.  Cheung subsequently sold it at $2.369 million in 1997.

78.  When Cheung was asked about these transactions in the witness box, he initially denied that the sale to Merry & Bright was conducted by him.  He said it was a sale by the Plaintiff and she executed the agreement.  Later, when the agreement was shown to him, he changed his story and said he executed it on behalf of the Plaintiff.

79.  What happened to the sale proceed of $2.369 million is not a subject that I need to deal with in this judgment.  But these transactions and the way Cheung testified on the same do cast doubts in my mind as regards his overall credibility.

80.  Another witness who testified on the relationship between the Plaintiff and the Deceased is Leung Lan Ying.  She was a maid working for KT’s family in Guangzhou and she had visited the Deceased after she came to Hong Kong in 1980.  She is now 86.  She testified on the relationship between the Deceased and his adopted children and grandchildren.

81.  Also, she gave evidence about the Deceased mentioning to her of his will during her visits to him in 1980 and 1981.  However, she was very confused in that respect.  She changed her evidence in the course of her testimony about the number of times and the venue of the visits.  She also changed her evidence as regards whether the Deceased mentioned about his will.  I do not feel able to act on her evidence on this subject.

82.  As regards her evidence on the relationship between the Deceased and the Plaintiff, she said even whilst the family was still in Guangzhou the Plaintiff was rarely seen at home.  She said during her visits in Hong Kong, the Deceased expressed to her his dissatisfaction with the Plaintiff.  I do not regard the relationship between the Plaintiff and the Deceased when they were in Guangzhou as having much bearing on what I need to decide in these proceedings.  By reason of the confusion of the witness over the circumstances of her visits of the Deceased in Hong Kong, though she had not retracted her evidence on this point, I am cautious about her evidence.  However, I do not accept Mr Miu’s submission that this witness was giving evidence against the Plaintiff because of grudges.  I find as a fact that she did visit the Deceased in Hong Kong.  But it is apparent to me that her perception have been coloured by the fact that amongst the Deceased’s relatives, she knew KT and his family better than the Plaintiff.  It was the daughter-in-law of KT who brought her to visit the Deceased in Hong Kong.  I do not place much reliance on her evidence.

83.  There is not much evidence on the character of the Deceased.  He was a man with business acumen and he had served his country in high political office.  I accept the evidence of Lau Man Ying that he was a very traditional Chinese man and wished his male descendants to inherit his estate.  This is also evidenced by his provisions in the Will and the Chinese note.  It is unlikely that a man of such character would revoke his will without replacing it with another will.

84.  For all the above reasons, I hold that the presumption has been rebutted and the Will is the last will of the Deceased.  The contents of the Will are proved by the copy of it produced by the 1^st Defendants.

Partial intestacy

85.  There are some assets of the estate acquired after the date of the Will.  There is a factory unit in Kwai Chung that was not disposed of under the Will.  Also there are some bank account balances and shares in a company called Kuk Fung Industrial Company Limited which are outside the scope of the Will.

86.  There is disagreement between the Plaintiff and the 1^st Defendants whether some of the shares of two other companies allotted to the Deceased after the date of the Will are covered by the disposition under the Will.  The Plaintiff invited this court to deal with it as an issue of construction of the Will.

87.  After hearing submissions, this court ruled that such a course should not be adopted.  As held in Re Fawcett [1941] 2 All ER 341, the probate court does have jurisdiction to decide questions of construction in so far as they affect the admissibility to probate of a testamentary document.  However, the general rule is that construction of a will should be decided in an administration action in which the personal representative of the estate is a party, see Lau Hau Chu v Ip Kam [2005] 4 HKLRD 64 at p.77 to 78.  The rationale of the general rule can be found in the judgment of Clough JA in Ip Cheung-kwok v Sin Hua Bank Trustee Ltd [1990] 1 HKLR 497 at p.511G to H,

“Any order made in the absence of the settlor’s personal representative or a party representing the settlor’s estate would not bind his personal representative when duly constituted.  There would therefore be multiplicity of proceedings. … Moreover the personal representative might take a different view …”

88.  Mr Miu failed to persuade me that this is a case which falls within the exception in Re Fawcett.  Mr Miu argued that it was a short point of construction.  I do not know whether the circumstances under which these further shares were allotted would be subject to dispute as it is not clear to me what the parties’ case were from their witness statements.  In any event, I do not think it is right to pre-empt the personal representative from considering the matter.  It must not be assumed that the personal representative would either be the Plaintiff or the 1^st Defendants.  If someone other than these two parties is appointed as the personal representative, his view may or may not be the same as one of the positions currently taken by them.  The personal representative may or may not be able to persuade all the beneficiaries to adopt a consensus to resolve the matter without the need to come before the court.  Even if the matter has to be resolved by the court, the costs implications could be quite different from the costs position in the probate action.

The Deceased’s Family Maintenance Ordinance [“DFMO”] claim

89.  In the Statement of Claim, the Plaintiff advanced a claim based on the DFMO. No evidence had been adduced on that claim.  On the application of the Plaintiff, this court granted leave to the Plaintiff to discontinue the claim on 3^rd December 2008.

Who should be the personal representative?

90.  Parties have not addressed this court on the question who should be the personal representative.  It seems to have been assumed that if this court shall hold that the Will was the last will of the Deceased, the 1^st Defendants would become the personal representative by reason of the chain of representation.

91.  That assumption may not be correct.  KT had not obtained probate for the estate of the Deceased.  In such circumstances, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate 19^th Edn p.49 suggests thatthere is no chain of representation.

92.  If that analysis is correct, there could be an argument as to whether Lau Man Ying should be appointed as personal representative given his potential liability to pay an occupation rent to the estate for the occupation of the flat at Wah Po Mansion since the demise of the Deceased.

93.  But that is not an issue which I need to decide now.  In a probate action, the court pronounces for or against a will.  The appointment of a personal representative as a result of the pronouncement and the nature of the grant is a matter to be dealt with by the Probate Registry in the usual manner.

Result

94.  I shall pronounce for the validity of the Will and its contents are proved by the copy filed with court.

95.  I shall also make a costs order nisi that both the costs of the Plaintiff and the 1^st Defendants are to be taxed on a common fund basis and to be paid out of the estate.