LEUNG PUI SZE v. POON CHIU SIM AND OTHERS

HCAP 5/2023

[2024] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 5 OF 2023

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J U D G M E N T

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A. INTRODUCTION

1.  This is the trial of this action on affidavit evidence pursuant to the Order of Mr Registrar Hui dated 21 September 2023. The plaintiff seeks an order that the court do pronounce for the validity of the will of Leung Chak Kuen (the “Deceased”)  dated 3 February 2016 (the “Will”), and grant letters of administration (with the will annexed)  to the plaintiff as sole administratrix.

2.  Given that the Will does not comply with the formality requirements in section 5(1)  of the Wills Ordinance, Cap 30 (“WO”), the plaintiff relies on section 5(2)  of the WO and seeks to establish that the Will embodies the testamentary intentions of the Deceased such that it would be deemed to be duly executed.

3.  The defendants did not file any acknowledgement of service or defence in this action, or otherwise participate in the proceedings.  By reason of Order 76, rule 6(2)-(3)  of the Rules of the High Court, the plaintiff proceeded to apply for an order for the trial of the action.

B.  RELEVANT LEGAL PRINCIPLES

4.  The principles were helpfully summarised by DHCJ MK Liu in Choi Cheung Hung v Leung Fung Ha [2023] HKCFI 2822 at §§23-29:

(1)  A person who propounds a will bears the legal or persuasive burden of proving the following on the balance of probabilities: (i)  there was due execution; (ii)  the testator was of testamentary capacity; and (iii)  the testator knew and approved of the contents of the will.

(2)  The standard of proof in section 5(2)  of the WO is more stringent than the ordinary civil standard in that the court has to be satisfied beyond reasonable doubt that the document in question embodies the testamentary intentions of the deceased.  There is no requirement of “substantial compliance” with the section 5(1)  formalities before section 5(2)  of the WO can be applicable.

(3)  On the issue of testamentary capacity, the following questions should be satisfactorily answered: (i)  whether the deceased was capable of understanding the nature of the act of making the will and its effects; (ii)  whether the deceased was capable of understanding the extent of the property of which he was disposing; and (iii)  whether the deceased was able to comprehend and appreciate claims to which he ought to give effect.

(4)  In considering knowledge and approval, the correct (or more preferable)  approach is to ask a single question of whether the testator understood what was in the will when he signed it, and what its effect would be, and considered that question in the light of all the available evidence and the inferences to be drawn from that evidence.

(5)  Ultimately, the court is required to apply a commonsense judicial judgment based on the whole of the evidence.

C.   THE PLAINTIFF’S CASE AND THE EVIDENCE

5.  The plaintiff’s case and evidence in respect of the Will is contained in the 2^nd Affirmation of the plaintiff, which has been summarised by the plaintiff as follows:

(1)  The Deceased is the plaintiff’s father and the plaintiff was born out of wedlock by邹琼 (Zou Qiong)  (“Zou”).

(2)  Since the plaintiff was born, the Deceased had been living with Zou and the plaintiff in Shenzhen when he stayed in Mainland China (at深圳龍崗區布吉龍崗大道和諧家園 (“Shenzhen Residence”))  from December 2011 onwards.  The Deceased had been financially supporting the plaintiff since her birth.

(3)  In or about October 2015, the Deceased, in front of five individuals (including the plaintiff)  at the Shenzhen Residence, declared that he would bequeath his shares in Luen Fat Tourist Bus Company (“Luen Fat”)  to the plaintiff upon his death (“Oct 2015 Declaration”).  The five individuals were Ho Kwan Lam (“Mr Ho”), Leung Kin Shing (“Mr Leung”), one 全哥, Zou and the plaintiff.

(4)  On the night of 3 February 2016, the Deceased asked the plaintiff for paper and pen, and subsequently for ink paste for fingerprinting.  Later during the night, the Deceased told the plaintiff that he must give her certain guarantees.  The plaintiff realised that the Deceased executed and placed his thumbprint on the Will.

(5)  By the Will, the Deceased bequeathed his share in Luen Fat and the Shenzhen Residence to the plaintiff.  The Will reads as follows:

“承諾書

本人梁集权[權]將自己拥[擁]有的

香港联[聯]發巴士股权[權]和深圳

和諧家園壹層楼[樓]由女兒梁㐽[佩]詩

所继[繼]承. 其它任何人都無权[權]享有.

承諾人

梁集权[權] (Thumbprint)

立

2016年2月3日”

6.  The plaintiff’s evidence is corroborated by three other witnesses.

(1)  Zou, Mr Ho and Mr Leung gave affirmation evidence to confirm the Oct 2015 Declaration.  Mr Ho is the Deceased’s partner in Luen Fat.  As to全哥, the plaintiff and Zou were unable to contact him after the Deceased passed away.

(2)  Zou also gave affirmation evidence to confirm what happened on the night of 3 February 2016 when the Deceased executed the Will.

7.  The plaintiff’s evidence is not contradicted by any evidence from the defendants.  In these circumstances, the court accepts the plaintiff’s evidence in full at this trial on affidavit evidence.

8.  Based on such undisputed evidence, it is clear beyond reasonable doubt that the Deceased validly executed the Will, which embodied his testamentary intentions:

(1)  The Deceased placed his thumbprint and signed on the Will, which was handwritten by him.

(2)  The Will is consistent with the Oct 2015 Declaration, ie the Deceased would bequeath his shares in Luen Fat to the plaintiff upon his death.

(3)  In view of the above and in the absence of any contrary evidence, the Deceased clearly had testamentary capacity in understanding that he was making a will to deal with the assets mentioned therein, as well as knowledge and approval of the terms of the Will.

D.  APPOINTMENT OF THE PLAINTIFF AS ADMINISTRATRIX

9.  According to Rule 19 of the Non-Contentious Probate Rules, Cap 10A (“NCPR”), the order of priority for grant of probate or administration with the will annexed is as follows:

“(i)  the executor;

(ii)  any residuary legatee or devisee holding in trust for any other person;

(iii)  any residuary legatee or devisee for life;

(iv)  the ultimate residuary legatee or devisee or, where the residue is not wholly disposed of by the will, any person entitled to share in the residue not so disposed of (including the Official Administrator)  or, subject to rule 25(3), the personal representative of any such person:

Provided that where the residue is not in terms wholly disposed of, the Registrar may, if he is satisfied that the testator has nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject however to rule 37)  to any legatee or devisee entitled to, or to a share in, the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the will;

(v)  any specific legatee or devisee or any creditor or, subject to rule 25(3), the personal representative of any such person or, where the estate is not wholly disposed of by the will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion thereto;

(vi)  any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.” (Emphasis supplied)

10.  Rule 25(1)  of the NCPR provides that “[a] grant may be made to any person entitled thereto without notice to any other persons entitled in the same degree”.

11.  Further, Section 36 of the Probate and Administration Ordinance, Cap 10 provides that:

“Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.” (Emphasis supplied)

12.  The Will did not appoint any executor and did not provide for any residuary legatees.  It is a case where the residue is not wholly disposed of by the Will.  In these circumstances, all of the plaintiff and the defendants (as the Deceased’s surviving wife and issue)  are entitled to share in the residue not disposed of by the Will: see Section 4(3)  of the Intestates’ Estates Ordinance, Cap 73.  Each of them would rank in the same priority for applying for a grant of administration under Rule 19(iv)  of the NCPR.

13.  Given that the Will disposes of two substantial assets in favour of the plaintiff (with no evidence that the Deceased had any other substantial assets), I hold that the plaintiff should be appointed as the sole administratrix of the Estate.  There is no indication from the defendants that they oppose such application.

E.  CONCLUSION AND DISPOSITION

14.  For all the reasons set out above, I make an order in terms of Prayers (1)  and (2)  of the Statement of Claim.  I make no order as to the costs of this action, save that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.