CHEUNG TAI SHING v. CHEUNG CHING FONG AND OTHERS

HCAP 9/2018

[2019] HKCFI 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 9 OF 2018

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REASONS FOR JUDGMENT

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1.  The plaintiff commenced this action seeking an order from the court to pronounce in solemn form of law for the validity of the will of his deceased brother (“the Deceased”), which exists in more than one document of apparently testamentary nature. He asked for probate on such basis to be granted to him as the executor named in those documents.

2.  None of the defendants named has appeared in the previous hearings. Directions have been given for the trial to be conducted on the basis of affidavit evidence subject to cross examination, if any.  The defendants were absent from the trial.  I saw no reason why the plaintiff should be prevented from proceeding, and I allowed him to do so.

3.  At the end of the hearing, I gave the order.  As indicated, I now give my reasons.

The undisputed facts

4.  By his 1^st affirmation, the plaintiff gave the following account of the material facts in line with the pleaded case.  In particular, the relationship of the parties concerned is illustrated by the following family generation chart:

5.  Cheung Tai Chuen (“Tai Chuen”) was the cousin of the Deceased, their respective fathers being brothers. Tai Chuen gave an account of how he came to discover the documents.  He explained that he and the Deceased had resided at the same flat for more than 40 years prior to the Deceased’s death.  After the Deceased’s death, he went through the belongings of the Deceased in his room at the flat and discovered the testamentary documents.  On the following day, he handed the documents over to the plaintiff.  Subsequently, together with the solicitors engaged, they proceeded to take photographs of the interior of the Deceased’s room, which were also exhibitedto his affirmation.  It was confirmed that no other testamentary script of the Deceased could be located.

6.  It should be noted that the plaintiff and Tai Chuen are not beneficiaries of the estate of the Deceased under the testamentary documents found.

7.  By his 2^nd affirmation, the plaintiff deposed to his belief, on the basis of his personal knowledge and observations from other documents, that the documents found were by the hand of the Deceased.  There is no circumstance casting doubt on such evidence.

8.  The documents were written in Chinese and came with covers with writings indicating that they were the Deceased’s wills:

 (1)     The one in terms as set out under Document A of the table under §12 below[1] bears the Deceased’s signature and was dated 7 March 2008.  It further contains what appear to be alterations dated 7 April 2008 and 30 July 2011 respectively, both engrossed with the Deceased’s signature.  This document was contained in an envelope[2].

 (2)     The one in terms as set out under Document B of the table under §12 below[3] bears the Deceased’s signature and was also dated 7 March 2008.  This, together with Document A in its envelope mentioned in (1) above, was contained in another envelope[4].

9.  Three things to note.

10.  First, from his regular and frequent meetings with the Deceased during the latter’s lifetime, the plaintiff observed nothing that would have cast doubt on the Deceased’s capability of coming up with documents like the testamentary documents mentioned above.

11.  Second, the plaintiff confirmed that notwithstanding the slight discrepancies in descriptions of the names of the beneficiaries, the Deceased could only be referring to the defendants by those named in the documents.  There was no other known to the family by those named in the documents.

12.  Third, the discrepancies in the terms of the bequests under the two documents, as can be seen below, were in fact slight.  For the present purpose, they were set out in English in the following table prepared by Ms Lui, who appeared for the plaintiff:

	Document A	Document B
1	New Territories Lok Ma Chau Lots D93 LOT 3683 and D93 LOT 1588 to the 3rd to the 5th Defendants in equal shares	New Territories Lok Ma Chau Lots D93 LOT 3683 and D93 LOT 1588 to the 3rd to 5th Defendants in equal shares
2	The Property at 6C, 22 – 32 Pok Fu Lam Road and all the furniture and belongings therein to the 4th Defendant	The Property at 6C, 22 – 32 Pok Fu Lam Road and all the furniture and belongings therein to the 4th Defendant
3	The Deceased’s shares approximately: (a) 3600 * in HSBC, (b) 4160 in HK Electric, (c) 1000 in Cathay Pacific, (d) 1000 in Bank of China, (e) 1000 in 碧桂園, and (f) 2000 in 波司登国際控股有限公司 to the 2nd, the 3rd, the 5th and 6th Defendants in equal shares	The Deceased’s shares approximately: (a) 3600 in HSBC, (b) 4160 in HK Electric, (c) 1000 in Cathay Pacific, (d) 1000 in Bank of China, (e) 1000 in 碧桂園, and (f) 2000 in 波司登国際控股有限公司 to the 2nd, the 3rd, the 5th and 6th Defendants in equal shares
4	The Deceased’s deposits “存款計有定期及儲蓄及基金，所有存摺薄， 定期存款單及基金文件放在甲萬內”, valued at approximately HK$6 million, half share to the 4th Defendant and the remaining half share to the 2nd, the 3rd, 5th and the 6th Defendants in equal shares	The Deceased’s deposits “存款計有定期及儲蓄，定期存款單及摺薄都放在甲萬內有外幣，人民幣及港元” valued at approximately HK$5 to 6 million, half share to the 4th Defendant and the remaining half share to the 2nd, the 3rd, the 5th and the 6th Defendants in equal shares
5	The Deceased’s miscellaneous valuables “金粒，金幣，大銀元，小銀幣及銅仙，小量金飾及国民黨戰前發出的国債卷” to the 4th Defendant
6	The opening of the safe deposit box would be performed by the Plaintiff, the 1st, the 4th and the 6th Defendants*

* as altered on 30 July 2011

13.  It can be seen that whilst the terms of the bequests under the two documents were not identical, the differences may well be generalized as those under Document A being more comprehensive than, instead of contradictory to, those under Document B.

14.  Indeed, the existence of these two wills of the same date is adequately explained by the writings on their cover notes.  In respect of Document A, the cover note set out the concern of the Deceased about the potential estate duty liability that might be attracted by full disclosure of the assets of his estate, and therefore his instruction that this should be withheld from the solicitors, while Document B, as the trimmed version of his will, should be provided to the solicitors engaged to handle the administration.  The cover note in respect of Document B also says that this is the will to be provided to the solicitors.  As Ms Lui accepted, the intention manifested by the written instructions of the Deceased mentioned above was misconception.

Discussion

15.  As to the execution of a will, section 5(1) of the Wills Ordinance, Cap 30 sets out the formalities.  However, section 5(2) provides:

“ 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.”

16.  Section 7(1) provides that an appointment by will, in exercise of any power, shall be valid if it is executed in accordance with section 5.

17.  As to alteration of a will, section 13 provides:

“ (1) No will or part of a will shall be revoked otherwise than—

(a) by marriage as provided by section 14;

(b) by another valid will;

(c) by a written revocation executed in a manner in which the testator could validly execute a will; or

(d) by the burning, tearing or otherwise destroying of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

(2)   No will shall be revoked by any presumption of an intention on the ground of an alteration in the circumstances.”

18.  Section 16 also provides:

“ (1) No obliteration, interlineation, or other alteration made in a will after execution shall be valid or have any effect, except so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed by the testator in a manner in which he could validly execute a will at the time such alteration was made.

…

(2) The will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator…is made—

(a) in the margin or on some other part of the will opposite or near to such alteration; or

(b) at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will.”

19.  A later will revokes an earlier will wholly or partly to the extent that it is inconsistent with the earlier will, but a second will may stand cumulatively with the first will insofar as they are not inconsistent.  See In the Estate of Bryan [1907] P 125, and for instance, Yeung Yuen King v Kong Wai Ha & Ors HCAP 19/2010 (13 March 2014). However, where there are two testamentary instruments of the same date and they are not consistent with each other, but there is nothing to show which was executed last, the court, if possible, construes them so that they may both stand: see Theobald on Wills (18^th ed) at §7-016. 

20.  The circumstances of the present case suggest that the Deceased most probably executed both documents on the same day, and intended both to be his wills.  He apparently regarded Document A as his comprehensive will while Document B was prepared merely out of his concern about estate duty liability.  This is reinforced by the fact that he cared to make subsequent alterations in the former but not in the latter.  Now Ms Lui asked for both documents to be pronounced valid, mainly because of the absence of clear revocation of either document by the Deceased at any time after their execution, and that there are descriptions that exist in one document but not the other.  This is perhaps the safest approach that one may take. Nevertheless, there is no compelling reason to object to that.

21.  As to the identities of the beneficiaries under the will, where a gift is made to a particular name or description, the testator is taken to be referring to someone known to him.  The court is unwilling to hold a gift void for uncertainty, and it will use every endeavour to ascertain who is meant: see Theobald (above) at §§22-006; 22-013.  As mentioned, the plaintiff explained that by the beneficiaries named in the wills, which did not dramatically differ from those of the defendants, the Deceased could only be referring to the defendants being the only ones known to him.

22.  I also considered that in the event of distribution of the estate of the Deceased on the basis of intestacy, the beneficiaries entitled to the estate pursuant to section 4 of the Intestates’ Estates Ordinance, Cap 73 would be the plaintiff, the 1^st and the 2^nd defendants.  In other words, all those that might be entitled to the estate of the Deceased, be they under the above testamentary documentsor upon intestacy, are parties to this action, but none has objected to the order sought.  In the case of the 3^rd and the 4^th defendants, as mentioned, they acknowledged service of the proceedings with express intention not to oppose.

Conclusion and order

23.  In the circumstances, I pronounce that (i) the wills contained in Documents A and B mentioned above are deemed to have been duly executed by the Deceased under section 5(2) of the Wills Ordinance, Cap 30; (ii) both represent the testamentary intention of the Deceased; (iii) insofar there is inconsistency between them, the will contained in Document A shall prevail and such parts shall be treated as omitted from the will contained in Document B; and (iv) probate in respect of the wills as aforesaid be granted to the plaintiff.

24.  I made no order as to costs between the plaintiff and the defendants, and order that costs of the plaintiff shall come out of the estate of the Deceased.