CHENG SAU KAM v. ENG AUDREY

HCA9459/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9459 OF 1994

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J U D G M E N T

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Background

1. Ng Sau Lan ["the Deceased"] was born on 3rd May, 1906. She died in Hong Kong on 27th December, 1993 when she was about 87 years of age.

2. The Deceased cohabited with one Chang Sek Chee ["Mr Chang"]. Mr Chang passed away on 9th April, 1974. By his will dated 12th July, 1973, Mr Chang bequeathed all his assets in favour of the Deceased. This included Flat B, 3/F, Nos.285-287, Castle Peak Road, Kowloon ["the Flat"].

3. The Plaintiff is the daughter of Mr Chang. She obtained probate in respect of the estate of the Deceased on strength of a will of the Deceased dated 10th June, 1981 ["the 1st Will"]. By the 1st Will, the Deceased appointed the Plaintiff to be her sole executrix and bequeathed her estate in favour of the Plaintiff.

4. The Defendant is the grand-daughter of the Deceased's brother. By an assignment dated 1st June, 1992 ["the Disputed Assignment"], the Deceased assigned the Flat in favour of the Defendant at an alleged consideration of $500,000. The Plaintiff maintains that the Disputed Assignment was procured by the Defendant's wrongful application of medication on the Deceased or by the Defendant's undue influence. The Defendant contends that the Disputed Assignment was a gift made pursuant to an agreement between her and the Deceased.

5. The Plaintiff instituted the present proceedings on 22nd September, 1994 for recoupment of the Deceased's estate. By her Re-amended Defence and Counterclaim dated 22nd September, 1999, the Defendant relied for the first time on another will of the Deceased dated 20th December, 1991 ["the Disputed Will"]. On the basis of this Disputed Will, she counterclaimed for revocation of the probate granted in favour of the Plaintiff.

6. By the Disputed Will, the Deceased appointed one Lam Kin Wah ["Mr Lam"] to be her sole executor and bequeathed in his favour her entire estate. Mr Lam was a tenant who rented one of the 3 rooms in the Flat. The Plaintiff does not admit execution of the Disputed Will by the Deceased. The Plaintiff further avers that the Deceased executed the Disputed Will under undue influence, threats or harassment by Mr Lam. Reliance is placed on the fact that in December, 1991, the Deceased was 84 and very senile.

The hearing before me

7. In February this year, the parties agreed that the validity of the Disputed Will and the revocation of the Plaintiff's grant be tried as a preliminary issue. When the case came before me, I raised with Counsel the question whether the issue is properly raised. Mr Poon cited p.407 of Williams, Mortimer & Sunnucks - Executors, Administrators and Probate pointing out that an action may be commenced for the revocation of grant where a later will revoking it has been discovered since the grant was made. I was then persuaded that the matter could proceed despite serious reservations as to the wisdom in tackling a preliminary issue in these circumstances. Mr Tsang, Counsel for the Plaintiff, felt that he was bound by the agreement reached early this year.

8. It is regrettable that the photo-copying of Mr Poon stopped at p.407. p.409 of Williams (above cited) states that "Where a person can show that the court has jurisdiction to make an order in a probate action which may affect his interest or possible interest in the estate of the deceased, however slightly, such person has a right to be a party to that action.". p.18 of Atkin's Court Forms, 2nd edition 1998 Issue makes it clear that "In order to enable a beneficiary to bring an action he must have a present interest in the property. Thus a contingent interest will be sufficient, but it is not enough if the beneficiary has a mere hope of succeeding.". O. 76, r. 9(1) requires the Defendant to show in her pleading that "if the allegations made [in her pleading] are proved [she] would be entitled to an interest in the estate.". Furthermore, "In an action for revocation of a grant of probate ... the plaintiff must join all those who are entitled to administer the estate under such grant.".

9. The Defendant has no interest under the Disputed Will. It is therefore difficult to see what locus she has in mounting a challenge to the subsisting probate in favour of the Plaintiff. Mr Lam has not been joined. He is obviously interested in any pronouncement on the Disputed Will.

10. On the preliminary issue as to whether the subsisting probate in favour of the Plaintiff should be revoked, I rule in favour of the Plaintiff on the basis that the Defendant has no locus standi to make such challenge.

11. Given the time and expenses incurred in debating the preliminary issue, I set out hereunder my obiter views should the matter proceed further.

The Disputed Will

12. The original of the Disputed Will was not produced before me. The Defendant relies on a copy of the Disputed Will annexed to an affirmation of one Chan Yuk Fun, a clerk of Messrs Chan & Wan, dated 27th July, 1998. Chan Yuk Fun asserted in this affirmation that the original of the Disputed Will was delivered to the Deceased on 20th December, 1991.

13. The Disputed Will consists of 2 pages. It is in the English language. There are altogether 3 clauses. The Chinese name of the Deceased was witnessed by Mr Tony C.S. Wan ["Mr Wan"], a solicitor of Messrs Chan & Wan, and Mr Chan Ho Cheung ["Mr Chan"], a clerk of Messrs Chan & Wan. The signature of Mr Chan also appears in the interpretation clause.

The evidence before me

14. Mr Chan was the only witness called by the Defendant. I was informed by Mr Poon that staff members of Messrs Chan & Wan refused to admit the Defendant's process server into their office for the purpose of serving a subpoena on Mr Wan. Such conduct, if true, is unbecoming and falls short of the standard one expects from a solicitors firm in practice in Hong Kong.

15. Mr Chan told me that Chan Yuk Fun was his superior. It was Chan Yuk Fun who instructed and directed him to prepare the Disputed Will. Chan Yuk Fun gave him the I.D. card number of Mr Lam. After the prepared the Disputed Will, he handed it to Chan Yuk Fun who made the appointment for its execution. When the Deceased arrived, she was accompanied by "a guy". The Deceased was then taken to a conference room. She was attended by Mr Wan, Chan Yuk Fun and Mr Chan. Mr Chan read over the contents of the Disputed Will to the Deceased. The Deceased just nodded after his interpretation. She looked and then she signed the Disputed Will. She did not say a word. Mr Chan could not remember whether the Deceased was paying attention to him. He could not remember who filled in the date of the will. Despite the absence of a reference number on the Disputed Will, he denied that it was prepared in a hurry. He said the Deceased paid the bill of his firm and the original of the Disputed Will was passed either to Chan Yuk Fun or to the Deceased. Mr Chan also pointed out that the Deceased had made a previous will in 1990.

16. The Plaintiff gave evidence. She told me that Mr Lam became a tenant of the Flat in September 1989. She collected rent from Mr Lam. Mr Lam managed to pay initially but not subsequently. Mr Lam stopped paying rent in about April/May 1990. When the Deceased was informed of Mr Lam's default, the Deceased merely observed that Mr Lam did not have money yet. Mr Lam moved out in June 1990. The Plaintiff then discovered that the Deceased had withdrawn her entire bank balance of $8,000 to $9,000. The Deceased told her that this was a loan to Mr Lam which he denied. On the 25th day of the 12th Moon in 1991, the Defendant told her of the return of Mr Lam. They attended the Flat together but could not gain entry as the Deceased failed to answer the door due to her hearing problem. They retired to a nearby Chinese herbal medicine shop and was told by its proprietress that Mr Lam had obtained the title deeds of the Flat from the Deceased. With the assistance of other relatives of the defendant, they managed to persuade Mr Lam to disgorge the deeds. She disagreed with the Defendant's suggestions that Mr Lam readily surrendered the deeds and that Mr Lam handed over the deeds on condition that the same be kept by the defendant.

The applicable legal principles

17. The original of the Disputed Will has not been produced. Mr Poon drew my attention to Para.337 of Vol.50 of Halsbury's Laws of England which states that "Where a later will cannot be produced, the burden of showing that it revoked an earlier will is on the person alleging revocation, and there must be either proof that it contained a clause revoking earlier wills or proof of a difference of disposition.".

18. Both Mr Poon and Mr Tsang place reliance on Para.425.058 of Vol.27 of Halsbury's Laws of Hong Kong :

"Want of knowledge or approval Although knowledge of the contents of a will and approval of it by the testator are essential to the validity of the will, this is normally assumed in the case of a competent testator from the fact that he has duly executed it. However, whenever the circumstances under which the will has been prepared raise a well-grounded suspicion that it does not express the testator's mind, the court ought not to pronounce in favour of it unless that suspicion is removed. Issue is thereupon joined in respect of the testator's will-making capacity and places upon the person propounding the will the onus of proving that the testator knew and approved the contents. The weak state of health or weakened physical condition of the testator will add to the suspicion. The nature of the instrument executed, its simplicity or complexity must also have some bearing in measuring the power of a weakened intellect, as will certain other factors.

If a person who has no rightful claim to a material share of the testator's estate prepared his will leaving a substantial benefit for himself, the person propounding the will must produce additional evidence to prove the knowledge of its contents by the deceased. This principle extends also to cases in which the preparation and execution was in the charge of a person other than the one who takes such benefit under the will. Circumstances exciting the suspicion and vigilance of a court are restricted to those attending or at least relevant to the preparation and execution of the will.

Where a testator has had his foreign will interpreted to him and has thereupon executed it, that would raise a grave and strong presumption that the will has been duly and properly executed by the testator. When verbal instructions are given to an intermediary who repeats them to a solicitor, the opportunities for error are obvious and the court will require to be strictly satisfied that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity. But this would not apply where signed instructions from a testator in his own language were passed on to legal advisers since generally the intervention by a solicitor at the time of execution with proper explanation and, if need be, also interpretation would suffice unless the testator's testamentary capacity was in doubt."

19. Liu J (as he then was) in In re the Estate of Ma Shiu-lim [1992] 2 HKLR 286 at p.290 pointed out that "Very often, how a will came to be made is not or is not fully known to the persons affected by it. Those affected are entitled to invite the court, on the suspicious circumstances they have since discovered, to exercise care and vigilance. In effect, issue is thereupon joined in respect to a testator's will-making capacity 'and place(s) upon the person propounding the will the onus of proving that the testator knew and approved of its contents'."

Applying these principles to the facts of this case

20. It is not disputed by the Defendant that Mr Lam was a mere tenant of the Deceased. Their relationship commenced in 1989. There is no evidence of any exceptional act of kindness shown by Mr Lam to the Deceased. The evidence appears to point the other way. He defaulted in rentals thereby depriving the Deceased of her meagre source of income. It is therefore difficult to see the basis of any rightful claim on Mr Lam's part to the entirety of the Deceased's estate. Whilst there is no evidence indicating that it was Mr Lam who furnished instructions to Messrs Chan & Wan for the preparation of the Disputed Will, the authorities indicate that the Court must be vigilant in face of this sudden manifestation of bounty in favour of a total stranger.

21. The onus of the Defendant is heightened by what transpired on the 25th day of the 12th moon of 1991. It is common ground between the parties that the Plaintiff and the Defendant confronted Mr Lam; Mr Lam disgorged the title deeds and those were handed to the Defendant with the knowledge of the Deceased. At all material times, the Flat constituted the principal if not the sole asset of the Deceased. The Defendant's case is that the Deceased made a gift of the Flat to her thereafter. Given the proximity of these transactions, it is difficult to see what objective the Deceased wished to achieve by making the Disputed Will. This in turn raises doubts on whether she truly understood the effect of her disposition.

22. The Defendant's case rests entirely on the evidence of Mr Chan. He is not a satisfactory witness. He cannot remember whether the Deceased was paying attention to him when he was interpreting the Disputed Will. Given the fact that he did not take any direct instruction from the Deceased, one would expect either Mr Wan or Mr Chan to seek confirmation form the Deceased that the provisions in the Disputed Will accord with her instructions. There is no evidence that this was done. Rather the evidence indicates a somewhat sloppy attempt to attend to the affairs of this lady of 85. The Disputed Will did not contain any file reference of Messrs Chan & Wan. No attempt was made to verify the identity card of the Deceased. In these circumstances, had it been necessary for me so to decide, I would not have been satisfied that the Defendant had successfully demonstrated, on a balance of probabilities, that the Deceased executed the Disputed Will or that she executed the same with full knowledge of its provisions.

Conclusion

23. I decide the preliminary issue in favour of the plaintiff on the basis of the Defendant's lack of locus. I make an order nisi that the Defendant must pay the Plaintiff the costs incurred in relation to this preliminary issue.

24. The disputes between the parties are bitter. It is in the interest of all that the beneficial entitlement in the Flat be resolved as soon as possible.