YAO YUE RONG v. CHAN KWONG MING

HCAP 35/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 35 OF 2012

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D E C I S I O N

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Application

1.  This is an application for summary judgment.

Background

2.  On 21 December 2012, the Plaintiff commenced the present proceedings against the Defendant.  The Plaintiff said that she was the lawful widow of Mr. Chan Shu Hok (陳樹鶴) (“the Deceased’) who died intestate on 17 September 2011.  She thereafter applied for the letters of administration in respect of the estate (‘the Estate”) of the Deceased.  However, she could not do so because of entering of 2 caveats (1173/2012 and 3976/2012) by the Defendant, one of the nephews of the Deceased.

3.  The matter could not be resolved by the parties themselves and as such, the Plaintiff asked the Court to direct that the 2 caveats should cease to have effect.  Further, she was to be appointed as the administratrix of the Estate and that the Defendant would be required to pay her costs.

4.  The Defendant filed his acknowledgment of service on 9 January 2013 indicating that he would be contesting the proceedings.

5.  The Plaintiff then took out her application for summary judgment on 21 January 2013.  Briefly, she explained that she enjoyed the highest priority to obtain the letters of administration.  However, the Defendant entered the caveats.  Although she had agreed to include all nephews and nieces to share in the Estate according to the Intestates’ Estates Ordinance (Cap 73) (“IEO”), the Defendant had an argument with her on the size of the Estate.  She further needed the letters of administration as quickly as possible because a tenant of the Deceased’s property had failed to pay rent from 10 October 2010.

6.  The Defendant opposed the order 14 application.  He said that he was the adopted son of the Deceased.  The Plaintiff was plainly grossly negligent in taking of the Deceased.  She had applied to the Court hoping that she would be appointed as a committee upon the ground that the Deceased was a mentally incapacitated person (“MIP”).  He opposed to it but the Deceased passed away before the Court could hear the arguments.  Anyway, the conduct of the Plaintiff was very problematic, including making up wills/attorneys and misappropriating funds of the Deceased before his death.  She could not be a suitable person to act as administratrix. An independent person and/or institution should be appointed instead.

7.  The Plaintiff disagreed.  She maintained that the Defendant was only a nephew but never adopted son of the Deceased.  She treated the Deceased well.  It was always her stance that the Deceased did not execute a proper Will.  It was not difficult to understand as the Deceased was an old man and suffered various diseases.  The Deceased signed an attorney to her because the tenant was not paying the rent.  Last but not least, the Plaintiff also questioned the credibility of the Defendant.

8.  Parties appeared before me on 26 April 2013.  Mr. P. Lo of counsel acted for the Plaintiff and Mr. M. Ho of counsel, acted for the Defendant.  Having heard from them, I adjourned the decision to be handed down.  I now do so.

Discussion

9.  Sum Wan Piu v Lau Siu Hong HCAP 3/2004, 12 January 2005, Deputy Judge J. Poon (as he then was) is the authority supporting that order 14 summons applies in probate application.

10.  The principles relating to summary judgment is clear.  In short, the underlying policy of it aims at preventing the defendant from delaying the plaintiff to obtain judgment in case where the latter clearly has no defence.  Facing such application, the Court asks 2 questions: -

(a) Factually, is what the defendant says believable in light of the undisputed or indisputable circumstances?  In so doing the court is entitled to take into account the commercial reality as well as contemporaneous documents. However, mini-trial on affidavit evidence shall not be embarked.  Bare assertion is insufficient and the defendant must condescend upon particulars.

(b) Legally, if what the defendant says is believable, does it amount to an arguable defence in law?

11.  Applying the above principles in the present context, should judgment be granted to the Plaintiff?

(a) There is no argument that the Plaintiff, being the surviving spouse of the Deceased, enjoys the top priority to be issued a letters of administration for the Estate (rule 21(1)(i) Non-contentious Probate Rules (Cap. 10A).

(b) I do not consider that the “dispute” between the parties as to the “capacity” of the Defendant, i.e. whether he is the nephew (as said by the Plaintiff) or the adopted son (as said by the Defendant) of the Deceased does matter at all.  Even assuming that the Defendant is the adopted son, he only ranks the second under r.21(1)(ii) NCPR, i.e. after the Plaintiff.  One of course does not forget the concession made by Mr Ho that, for the purpose of the application for summary judgment, the Defendant agrees that he is the nephew of the Deceased.

(c) The case of the Defendant lies on the fact that he will be able to demonstrate “special circumstances” justifying the exercise of the Court’s power or discretion “passing over” her.

12.  I now move to each and every grounds raised by the Defendant to see if there is any triable issue or some other reason for a trial.

Dishonesty?

13.  The Defendant said that the Plaintiff had been dishonest.  In the MIP proceedings, she produced a hand-written note, purporting to suggest that the Deceased would bequeath all his estate to her.  The Defendant doubted the authenticity of the note.

14.  The Plaintiff denied any dishonesty.  It was always her case that the Deceased had not left any proper Will.  She merely produced the notes written by the Deceased.  Anyway, she had nothing to hide and supplied the Court with the whole of the note book.

15.  Upon thought, I am afraid that the Defendant’s worry amount only to a mere allegation without any supporting evidence.  In further consideration of the contemporaneous documents produced by the Plaintiff, I am afraid that the Defendant has not been able to persuade that it will raise a triable issue.

Destruction of a Will?

16.  The Defendant deposed that between 2009 and 2010, the Deceased mentioned to him that he had made his Will for a number of times, and “On one occasion, Yao [the Plaintiff] even torn one of the DECEASED’s wills into pieces in my presence.”

17.  With respect, such ground not only lacks particulars, but also goes against reality in the sense that: how did the Deceased know that it was a Will?  Why did he not pick up any of the pieces?  Why did he not report to the matter to the relevant authority?

18.  Hence, such allegation is simply not believable.

Misappropriation of fund?

19.  In the MIP proceedings, the Defendant questioned that a total sum of $356,000 was withdrawn from the joint account of the Deceased and the Plaintiff from 6 September 2010 to 24 January 2011.  He asked for an explanation.  The Plaintiff then answered in the followings.

(a) As to 3 withdrawals totalling $160,000, it was done by the Deceased himself before his stroke in September 2010.

(b) Regarding the remaining $196,000, she withdrew the same for payment of the living and medical expenses of the Deceased and herself.  She further gave detailed particulars of all the expenditure as well as contemporaneous receipts.

20.  In the present proceedings, the Defendant repeated the question and further queried a total of withdrawals of $722,971 from the Deceased’s bank account.

21.  The Plaintiff explained that they were all done by the Deceased himself in his own bank account and they were all withdrawn before his stroke.

22.  At the hearing before me, both counsel and I took time to go through the said bank account of the Deceased.  However, other than showing money being paid in and taken out (by cash or transfer), nothing could be made out of it.

23.  With respect, I do not consider the complaint of the Defendant can even get off the ground.

Signing of attorney under duress?

24.  The Defendant also said that the Plaintiff had produced a power of attorney in the MIP proceedings and he “…verily believe that the same must be executed and/or drafted by the Deceased under duress or during the time when he was not sound in mind”.

25.  The Plaintiff explained she had provided an answer in the MIP proceedings.  At that time, the Deceased had a difficult time in collecting rent from a tenant.  As his health was deteriorating, he wanted the Plaintiff to do it for him.  Due to his sickness, he could not write properly.  Anyway, he drafted it first and asked someone to re-write for him to execute.  All these two attorneys were placed before the Court.

26.  Upon consideration, one of course cannot refrain from questioning the basis of the belief of the Defendant.  He provided no particulars and evidence to support the same.  After hearing from the Plaintiff, he made no reply.  I take the view, again, that the Defendant has not been able to raise a reason for a trial.

Conduct of the parties

27.  In considering the argument between the parties, I do not forget to remind myself that no mini-trial on affidavit shall be conducted by me.  However, I am entitled to consider the contemporaneous documents produced before me, including in particular the following:

(a)  The solicitors of the Defendant wrote on 8 August 2012 that:

“Subject to discovery of further information, the estate of the late Chan Shu Hok, according to our client’s instructions, consists of the followings:

i) Flat Q, 14^th Floor, Maylun Apartments, 23 Shu Kok Street, Hong Kong, which was of the value of about HK$3.5 million at the material times;

ii) Flat D, 21^st Floor, Fok Ying Building, 379-381 King’s Road, North Point, Hong Kong which was of the value of about HK$2.5 million at the material time; and

iii) Fixed deposit and other valuable assets of about HK$0.8 million.

Total amount of estate: about HK$6.8 million

According to the Intestate Estate Ordinance, the total amount of the share to which our client and the deceased’s other two nephews, namely 陳光林 and 陳萬里 entitled is about HK$2.9 million (i.e. (HK$6.8 m – HK$1 m)/2 = HK$2.9 m)

For the purpose of resolving the parties’ dispute, we propose the followings:

1. The estate of the deceased be shared in the following manner:

i) HK$3.9 m to your client; and

ii) HK$2.9 m to our client, 陳光林 and 陳萬里.

2. Your client do obtain the Letters of Administration in the capacity of the administratrix of the estate of the deceased.

Please take your client’s instructions and let us know if the aforesaid is agreeable to her within the next 7 days.

……”

(b) Plaintiff’s solicitors replied on 16 August 2012:

“Your client’s proposal is unreasonable and unacceptable to our client. Our client will only accept distributing the estate of the abovenamed deceased in according to section 4(4) of the Intestates’ Estates Ordinance.

In respect of your client’s proposal, we have the following reply: -

1. The total estate of the said deceased should be as at the date of death, not based on information our client supplied in relation to her application under HCMH 66/2010.

2. Your client’s alleged fixed deposit is a joint account of the said deceased and our client holding as joint tenant and has passed to our client by survivorship.

3. Please clarify what your client referred to as “valuable assets”.

4. Your client’s estimation of Flat Q, 14^th Floor, Maylun Apartments, 23 Shu Kuk Street, Hong Kong (“the residual home”) is on the high side. Our client’s estimation of the said property is $3,100,000.00. We now enclose herewith information in relation to the valuation of the said property on or around the death of the said deceased.

5. We are now instructed that beside your client and his two brothers, the said deceased has 3 more nieces and/or nephews, namely sons and/or daughters of the said deceased’s elder sister. In such premises, total of 6 persons are entitled to the remaining of 50% of the remaining estate of the said deceased.

Furthermore, we would like to point out the following: -

1. In pursuant to section 7 and Schedule 2 of the Intestates’ Estates Ordinance, the residential home shall be appropriated to our client in or towards satisfaction of part of our client’s interest in the estate of the said deceased.

2. Our client had paid the said deceased’s funeral and administration expenses, debts and other liabilities, such as contribution to the maintenance work of the residential home, management fee and government rent and rate of Flat D, 21^st Floor, Fok Ying Building, 379-381 King’s Road, North Point, Hong Kong (“Fok Ying Flat”), these sums should be paid out and refund to our client from the estate of the said deceased prior to any distribution.

We must point out that our client, being the lawful wife and the intended administratrix of the said deceased, she states under oath, that she “will well and truly administer and faithfully dispose of, all such property and estate, rights and credits as the Deceased at the time of his death was entitled to within Hong Kong, and I (she) will pay whatever debts the Deceased will owe, so far as such property and estate, rights and credits, shall extend, and I (she) will exhibit a true and perfect inventory of all and singular the estate and effects and render a just and true account thereof whenever required by law so to do”. Our client is of the opinion that your client’s issuance of a Caveat is unnecessary and is waste of costs and time. Your client’s entitlement as a nephew is protected by the Hong Kong law.

Being the lawful wife of the said deceased, our client fails to see why she is being refrained from the issuance of the Letters of Administration and should accept your client’s offer.

Your client is fully aware that Fok Ying Flat is now rented out and the tenant failed and/or refused to pay rent since the said deceased admitted in the hospital in October 2010. The said tenant also failed to deliver vacant possession of Fok Ying Flat after expiration of the tenancy agreement on 9^th June 2012. Our client, without the issuance of the Letters of Administration, has no capacity to recover the outstanding rent and possession of Fok Ying Flat.

In such premises, our client’s application for Letters of Administration should be concluded as soon as possible. Should your client continue to make insensible offer and/or insist to proceed with this probate proceedings, our client will consider to seek indemnity costs against your client.

All our client’s rights are hereby reserved.”

From the above, it is clear that the Defendant is not arguing the Plaintiff’s right to administer the Estate.  Instead, it is the size and sharing of the Estate being disputed.

Conclusion

28.  To conclude, the Defendant has failed to establish any triable issue or reason for a trial.  Summary judgment is therefore to be awarded to the Plaintiff. I will order that:

(a) The Caveats No 1173/2012 and 3976/2012 shall cease to have any effect.

(b) The Plaintiff be granted the letters of administration of the Chan Shu Hok (陳樹鶴), deceased, if entitled to.

(c) There be a costs order nisi that the Defendant do pay costs of the Plaintiff in the application and proceedings, including costs reserved and certificate of counsel for hearing on 26 April 2013, to be summarily assessed by me, failing agreement between the parties within 21 days from the date hereof.

(d) For the purpose of the said assessment, the Plaintiff do lodge and serve her statement of costs 28 days from the date hereof.  The Defendant do also lodge and serve his objection within 7 days thereafter.