YAU SAU CHUN v. YAU TIM WO

HCAP 9/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 9 OF 2016

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D E C I S I O N

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INTRODUCTION

1.  In this probate action, the plaintiff seeks to propound a will made by Yau Tung Hoi, deceased (“the Deceased”) dated 30 September 2003 (“the 2003 Will”), while the defendant seeks to propound an earlier will made by the Deceased on 22 June 1991 (“the 1991 Will”), in solemn form.

2.  The issues which I have to decide are-

(1)   whether summary judgment should be entered for the plaintiff on the ground that the defendant has failed to raise any credible defence that the Deceased did not did not know or approve of the contents of the 2003 Will at the time of its execution; and

(2)   whether the defendant’s counterclaim should be struck out.

3.  Mr Poon for the plaintiff accepts that the application for summary judgment and the application to strike out will stand or fall together.

BASIC FACTS

4.  For the purpose of these applications, the background facts can shortly be stated as follows.

5.  The Deceased was an indigenous inhabitant in the New Territories born in 1925.  He was married with 3 sons and 6 daughters.  The Deceased’s wife predeceased him in 2007, and he passed away in 2014, at the age of 89.

6.  The defendant is the fourth son, and plaintiff is the seventh daughter, of the Deceased.

7.  According to the defendant, the Deceased, being a traditional New Territories inhabitant, had a predisposition or mind-set that sons should be entitled to a greater share of a family’s wealth than daughters by way of inheritance.  While this may not reflect the current thinking of the general public in Hong Kong, it is undeniable that such predisposition or mind-set is shared by many of the older generation, particularly the indigenous inhabitants in the New Territories.

8.  Anyhow, the Deceased’s predisposition or mind-set was, according to the defendant, reflected in the 1991 Will, a homemade document.  In that will, the Deceased stated that he had 5 village houses and 1 shop, and he bequeathed 1 village house to each of his 3 sons, and 1 village house to his 6 daughters collectively.  Also, although he bequeathed his residuary estate to his wife, he expressly provided that after her demise, what was left should likewise be divided into 4 shares, with 3 shares going to the 3 sons and 1 share going to the 6 daughters collectively.

9.  On the other hand, by the 2003 Will, a formal document which apparently was prepared by a solicitor (Mr Edmond Yuen) and executed by the Deceased at the office of Messrs Raymond Chan, Kenneth Yuen & Co in the presence of Mr Edmond Yuen and his clerk after the contents thereof had been interpreted to the Deceased by Mr Edmond Yuen, the Deceased:-

(1)  revoked all former wills and testamentary dispositions made by him (“the Revocation Provision”);

(2)  gave and devised his property known as the “First Floor of Lot No.1509 in Demarcation District No.453, Tsuen Wan, New Territories, Hong Kong” (“the Property”) to the plaintiff absolutely for her use and benefit (“the Disposition Provision”); and

(3)  appointed the plaintiff as the sole executrix of the 2003 Will (“the Appointment Provision”).

10.  Three matters are of note here. First, the Property is not mentioned in the 1991 Will and does not form part of the 6 properties referred to in that will.

11.  Second, the 2003 Will only deals with the Property, leaving the rest of the estate of the Deceased undisposed of.

12.  Third, the Deceased was, strictly speaking, not the owner of the “First Floor” of Lot No.1509 in Demarcation District No.453.  As I understand it, the building in question is a traditional Ding house with 3 floors, and the Deceased was a tenant-in-common in equal share with two other persons (one of whom was his eldest son) of the relevant land and building.  It also seems to be the case that the Deceased used to have the use, occupation or enjoyment of the First Floor, in the sense that it was let by him and the rents derived from the letting were received by him, presumably with the consent of the other two co-owners.

13.  The plaintiff says that the circumstances under which the 2003 Will came to be prepared and executed by the Deceased clearly compel the conclusion that it is a valid will of the Deceased which ought to be admitted to probate.

14.  On the other hand, the defendant contends that the whole surrounding circumstances (which I shall refer to with greater particularity below) in respect of the 2003 Will are such as to show clearly the Deceased’s lack of knowledge and approval of the Revocation Provision and the Appointment Provision. Accordingly, the 2003 Will is null and void and should not be admitted to probate.  Instead, the 1991 Will represents the Deceased’s last will and testament and should be admitted to probate.

15.  In passing, I should mention that in the Amended Defence and Counterclaim, the defendant also contends that in view of the fact that the Deceased had, as a matter of law, no right to give the First Floor of the building erected upon Lot No.1509 in Demarcation District No.453 to the plaintiff by will, the Disposition Provision is null and void.  In my view, even if the Disposition Provision is null and void as alleged by the defendant (which it is not necessary for me to decide here), the whole of the 2003 Will would not thereby be rendered invalid.

DISCUSSION

16.  It is not in dispute that Order 14 of the Rules of the High Court, Cap 4, applies to a probate action so that, in an appropriate case, the court may give summary judgment to propound a will in solemn form (see Re Lau Siu Wah, Deceased [2005] 1 HKC 364, at paragraphs 13 to 19 per Deputy Judge Poon, as he then was).

17.  It is also trite that before a will may be propounded in solemn form, it must be proved, and the burden is on the proponent of the will to prove, amongst other things, that the testator knew and approved of the contents of the will (see Wang Din Shin v Nina Kung (2005) 8 HKCFAR 387, at paragraph 173 per Riberio PJ).

18.  The fact that the 2003 Will was prepared by a solicitor, and was, on the face of it, properly executed by the Deceased in front of the solicitor and his clerk after having been interpreted the contents thereof by the solicitor, raises a very strong presumption of the Deceased’s knowledge and approval of the contents of the will: see Gill v Woodall [2010] Ch 380 per Lord Neuberger MR:-

“14. Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.

15.   In Fulton v Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that

‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator …’

This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256 , 261, whose approach was referred to with approval by Latey J in In re Morris, decd [1971] P 62 , 77 f -78 b . Hill J said that “when it is proved that a will has been read over to or by a capable testator, and he then executes it”, the “grave and strong presumption” of knowledge and approval “can be rebutted only by the clearest evidence”. This approach was adopted in this court in Fuller v Strum [2002] 1 WLR 1097 , para 33 and in Perrins v Holland [2011] Ch 270 , para 28.”

19.  Nevertheless, Mr Poon does not contend (rightly in my view) that such presumption is conclusive.

20.  There is another principle of some relevance for the purpose of the present discussion.  Generally speaking, a defendant in a probate action is entitled to put the plaintiff seeking to propound a will to strict proof of the will in solemn form of law.  This principle is reflected by the special provision on costs contained in Order 62, rule 6(1)(c) of the Rules of the High Court, Cap 4, which states as follows:-

“Notwithstanding anything in this Order or in section 52A of the Ordinance –

(c) unless the Court is of opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will in a probate action who has given notice with his defence to the party setting up the will that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.”

21.  It is a matter of substance, not form, whether a defendant merely insists upon a will being proved in solemn form.  In my view, the defendant has gone beyond putting the plaintiff to strict proof of the 2003 Will in solemn form in this case, because he also seeks to propound an earlier will of the Deceased, ie the 1999 Will.  This having been said, his case on the force and validity of the 1999 Will is based on his contention that the 2003 Will is not valid because the Deceased did not know or approve of the contents of the 2003 Will, in particular the Revocation Provision and Appointment Provision.  The question for decision by me is whether such contention is so devoid of merits that summary judgment pronouncing for the force and validity of the 2003 Will should be entered for the plaintiff.

22.  The defendant relies, principally, on the following facts and matters to contend that the Deceased could not have understood or approved the Revocation and Appointment Provisions in the 2003 Will:-

(1)   the Deceased was an indigenous inhabitant in the New Territories with a predisposition or mind-set of favouring his sons over daughters in matters of inheritance;

(2)   the Deceased carefully kept and preserved the 1991 Will together with the title deeds relating to two properties (namely, Nos 66 and 67, Hoi Pa Village) which the defendant alleges were regarded by the Deceased as the “ancestral houses”;

(3)   the inherent improbability that the Deceased, said to be a prudent and careful man, would leave the bulk of his estate undisposed of under the 2003 Will;

(4)   the fact that in a letter signed by the Deceased and the plaintiff dated 28 August 2003 (“the August 2003 Letter”), barely a month prior to the date of execution of the 2003 Will, the Deceased expressed an intention to make only a gift of the Property to the plaintiff and her husband (who, it was said, had paid the relevant premium and construction costs of the Ding house) and he was seeking advice from one Mr Chung, Chairman of the Tsuen Wan Rural Committee, on how their position could be protected if the Property was not formally transferred to them (in view of the high premium which had to be paid upon the transfer);

(5)   the inherent improbability that the Deceased would appoint the plaintiff as the executrix, or sole executrix, of his will, having regard to the fact that the plaintiff was subjected to a mortgagee action in late 1999 and was made bankrupt in 2008; and

(6)   the plaintiff failed to mention the existence of the 2003 Will at a family meeting in January 2015 when the defendant informed the family members of the existence of the 1991 Will and asked them whether they possessed any other will of the Deceased.  In this regard, it is of note that, according to the plaintiff, she accompanied the Deceased to the office of Messrs Raymond Chan, Kenneth Yuen & Co on 30 September 2003 to execute the 2003 Will. It follows that she was aware of the existence of the 2003 Will at the family meeting in January 2015.

23.  In considering the defence raised by the defendant, I bear in mind that some of the facts relied upon by the defendant are disputed by the plaintiff.  Since the court cannot conduct a mini-trial on affidavit evidence, I shall proceed on the basis of the factual allegations raised by the defendant unless they are plainly incredible or unbelievable.

24.  I also take into account the evidence of Yau Sau Ping that the Deceased bought her a few properties as gifts during his lifetime, which may go some way towards contradicting the defendant’s allegation that the Deceased had a predisposition or mind-set of favouring his sons over daughters.

25.  The test for summary judgment is well established.  It is whether the defence raised by the defendant is credible.  This is not, however, exactly a case where the court is being asked to decide whether an assertion of fact made by the defendant is credible.  What the defendant is asking the court to do, effectively, is to draw an inference based on the circumstances surrounding the 2003 Will that the Deceased did not know or approve of the contents of that document at the time when he signed on it.

26.  It is, in my view, significant that none of the matters raised by the defendant directly contradicts the clear evidence given by Mr Edmond Yuen relating to the preparation and execution of the 2003 Will.  His evidence is clear and unequivocal: he received instructions directly from the Deceased in his office on or about 30 September 2003, he prepared the will in accordance with the Deceased’s instructions, he interpreted the contents of the will to the Deceased in the Punti dialect, and the Deceased, upon being satisfied with the contents of the will, executed it in the presence of him and his clerk (Mr Lee Ho Yuen).  There is nothing inherently improbable in Mr Edmond Yuen’s evidence.

27.  I should also deal with one other criticism of the plaintiff’s evidence raised by Mr Chan.  In paragraph 2(e) of the Defence and Counterclaim, the defendant alleged that Mr Chung (Chairman of Tsuen Wan Rural Committee) advised the Deceased that the transfer of the Property to the plaintiff could be done “by way of testamentary gift in order to save costs and to avoid the payment of land premium to the Hong Kong Government”.  In paragraph 5 of her 2^nd affirmation filed on 7 October 2016, the plaintiff said that she had never heard that “there was this Mr Chung Wai Ping who gave any advice to [the Deceased] in August 2003” as alleged.  Mr Chan submits that this evidence of the plaintiff is rebutted by the contents of the August 2003 Letter.  As I see it, the letter does not, in fact, give any clue on the advice (if any) given by Mr Chung to the Deceased.  In any event, the comments in paragraph 26 above also apply to this criticism of the plaintiff’s evidence.

28.  Overall, I do not consider that the various matters raised by the defendant, whether taken individually or cumulatively, are sufficient to raise any triable issue that the Deceased did not know or approve of the contents of the 2003 Will at the time of execution of that document.

DISPOSITION

29.  For the above reasons, I give summary judgment for the plaintiff, and strike out the defendant’s counterclaim, in terms of paragraphs 1 and 2 of the plaintiff’s summons dated 7 October 2016.  I also make an order nisi that: (i) the defendant shall pay the plaintiff the costs of this action, including the costs of and occasioned by the summons, to be taxed on a party and party basis if not agreed, with certificate for counsel, and (ii) the plaintiff’s costs, to be assessed on a trustee basis, which shall not recoverable from the defendant, shall be paid out of the estate of the Deceased.