WONG WAI MING v. WONG SHING CHI JOHNLY

HCAP 28/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 28 OF 2012

________________________

________________

D E C I S I O N

________________

A. Introduction

1.  The deceased, Mdm Tang Lan, a widow, died in October 201l.  She had two lawful and natural daughters, Wong Wai Ming the plaintiff in this action (“the plaintiff”), and Wong Wai Kwan (“the pre-deceased Daughter”), the latter of whom died before the deceased and was survived by a son.

2.  In January 2012, the plaintiff, through her solicitors, filed in the Probate Registry an application for letters of administration of the deceased’s estate.  In the oath in support of the application, intestacy was being averred.  It was further averred that the deceased only had two lawful and natural children - the plaintiff herself and the pre-deceased Daughter.  It was asserted in the concluding paragraph of the oath that she was the only person entitled to the estate of the deceased^[1].

3.  In April 2012, Wong Shing Chi Johnly, the defendant in this action (“the defendant”), through his solicitors, entered a caveat against the sealing of grant.  The plaintiff filed a warning to the caveat, requiring the defendant to give particulars of his interest contrary to that of the plaintiff’s.

4.  After the caveat was properly warned, the defendant, in September 2012, entered an appearance to the warning, in which he set out his interest, stating that:

“The Deceased died intestate. The Caveator is the lawful and natural son of the Deceased or alternatively a child of the Deceased within the meaning of the Intestates’ Estate Ordinance, and is entitled to share and has interest in the estate of the Deceased.”

5.  This was followed by the commencement of this probate action in October 2012, in which the plaintiff asserts that the deceased had died intestate, and asks for letters of administration to be granted to her.

B. The defendant’s summons

6.  In the defence and counterclaim filed on 5 December 2012, the defendant asserts his belief that the deceased had executed a will, and that the plaintiff, a Mr Dun (who is the younger brother of the deceased) and Mdm Chan (Mr Dun’s wife) have knowledge of the whereabouts of the will.  The defendant further states that he is not the deceased’s natural son, but claims to be her adopted son.

7.  On the same day of the filing of the defence, the defendant also issued the present summons requiring Mr Dun and Mdm Chan to attend court for examination.  Section 7 of the Probate and Administration Ordinance, Cap. 10 (“PAO”), Order 76 rule 13, Rules of the High Court and the inherent jurisdiction of the Court are being referred to in the margin note of the summons.

8.  The plaintiff maintains a neutral stance, but Mr Dun and Mdm Chan object to the application.

C. The grounds in support of the application

C.1 the statutory provisions

9.  The court’s power of granting of an order for examination under section 7, PAO, is to be found in subsection (2) only, and subsection (3) is concerned with the Registrar’s power to issue a subpoena, and is therefore not relevant to the application.  Since subsection (1) is also linked to subsection (2), I set them out below:

Subsections (1) and (2):

“(1) The court may, on motion or petition or otherwise, in a summary way, whether any proceedings are or are not pending in the court with respect to any probate or administration, order any person to produce and bring into the Registry, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he has knowledge of any such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to an action in the court and had made such default.”

C.2 the evidence

10.  Affirmation evidence was filed by the defendant, his wife, Mdm Yau, and Mr Dun and Mdm Chan.

11.  Upon the direction of the court, the plaintiff on 18 October 2013 later filed an affirmation dealing with the issue of will search (“the plaintiff’s affirmation”), which will be further discussed in § 40 below.

12.  The evidence the defendant relies on in support of his belief has been succinctly summarized by his counsel, Mr Wong, in his written submission of 19 September 2013, and I would respectfully adopt it with appropriate amendments as follows:-

(1) Afterthe death of the pre-deceased Daughter in 1998, the deceased had allegedly told the defendant that she wished to make a will in a solicitors’ office.[2]

(2) On a day in 2000, Mr Dun came to look for the deceased in her Yuen Long store, but she was not there.  When the deceased returned to the store, they left together and the deceased allegedly told Mdm Yau (who was then helping in the store) that she was going to execute a will, and asked her not to tell the plaintiff where she had gone.[3]

(3) At the deceased’s death bed,

(i) Mdm Chan allegedly accused the defendant of taking away the deceased’s estate.[4]

(ii) Mdm Yau allegedly overheard a conversation between the plaintiff and Mdm Chan with words to the effect that the plaintiff felt aggrieved that the deceased had decided to leave so much money to the defendant.  It was further alleged that Mdm Chan had said to the plaintiff words to the effect that if Mr Dun and Mdm Chan did not say anything, no one would know that the deceased had given money to the defendant.[5]

(4) The deceased had allegedly told Mdm Yau that she had kept in a safe deposit box in the joint names of the deceased and the plaintiff her jewellery and watches as well as some important documents. Contrary to what the deceased had allegedly said about the contents of the said box, only a few items of very small value were found inside the box when it was opened after the deceased had died. [6]

13.  Mr Wong submits, based on the aforesaid evidence, that the defendant has reasonable grounds to believe that Mr Dun and Mdm Chan have knowledge of the deceased’s will, and that the requirement of section 7(2) has been met.

D. The opposition

14.  Both Mr Dun and Mdm Chan denied such events as alleged by the defendant and Mdm Yau, and of having any knowledge as to whether the deceased had executed any wills or documents that were testamentary in nature.

15.  Mr KM Wong, solicitor for Mr Dun and Mdm Chan, hence, contends that the defendant’s allegations are bare assertions as they are unsupported by any corroborative evidence.  It is further contended that given the nil result of the will search, and further that Mr Dun and Mdm Chan have already confirmed on oath their lack of knowledge, the defendant’s summons was only a fishing exercise.

E. The applicable principles

16.  Applications under section 7, PAO, especially under subsection (2), are rarely made.  Apart from the textbook commentaries (to be discussed at § 18 below), there is virtually no authority in Hong Kong in respect of an application under subsection (2).

17.  Reference thus needed to be made by Mr KM Wong to the equivalent of the UK provisions and the English authorities in his supplemental skeleton submission after having spent much effort in trying to locate authorities in Hong Kong without result.

18.  The only Hong Kong reference Mr KM Wong referred to is in the commentary of a Hong Kong textbook, Butterworths Hong Kong Probate, Administration and Trustee Handbook^[7], which contains helpful source materials and comments in relation to subsections (1) and (2).  

“The corresponding English provision is the Supreme Court Act 1981 ss122 and 123 … [8]

[The] section emphasizes the importance of ensuring that all wills and other testamentary documents are discovered and considered for a grant of probate or administration…. [9]

This Subsection [(2)] governs the situation not within the circumstances of subsection (1), where there are reasonable grounds for believing that a person has knowledge of such paper or writing… Failure to do so will constitute a contempt of court. It is thought that the power is rarely if ever utilized.”[10]

19.  Section 122 of the English Supreme Court Act (“the UK Act”) is akin to our section 7(1) and  (2), PAO,  while section 123 of the UK Act to section 7(3).  As already stated in § 9 above, subsection (3) is not applicable to this application.  Thus, for the purpose of this application, only section 122 of the UK Act needs to be referred to.

20.  Section 122(1)^[11] of the UK Act, similar to our section 7(2), PAO, also confers on the court a power of examination when it is satisfied that there are reasonable grounds for an applicant to believe that a person has knowledge of a testamentary document.  A notable difference between the two is that : unlike section 122 (1) of the UK Act,  section 7(2), PAO,  begins with this passage:  “If it is not shown that any such paper or writing is in the possession or under the control of such person”  .

21.  This passage in section 7(2), PAO, should be read in conjunction with subsection (1), which empowers the court to order a person to produce or bring into the Probate Registry any paper or writing that is testamentary if it can be shown that such document is in the possession or under the control of such person.

22.  The beginning passage (that is absent in section 122(1) of the UK Act) in section 7(2) seems to support Mr Wong’s submission that an application under subsection (2) does not need to establish that the person against whom an order is sought is in possession or control of such document.   Possession will be required to be established by subsection (1) but not subsection (2). If possession cannot be established, one may consider an application under subsection (2) .In this respect, I agree with Mr Wong that all that is required is to be established in a section 7(2) application is the presence of reasonable grounds for an applicant to believe that a person has knowledge of a document of a testamentary nature.

23.  Given the difference as highlighted above between section 122(1) of the UK Act and our section 7(2), PAO, one should read with caution the passage Mr KM Wong cited from Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, that comments that : 

“The application is made where it is believed that a person has knowledge of a script but either will not make any statement on the matter or makes one that appears misleading or deliberately incomplete.”[12]

24.  I do not think this comment is applicable to the present situation. In the event, I do not think the basis of the defendant’s application under subsection (2) is on the ground of Mr Dun and Mdm Chan refusing to make any statement (which is plainly not the case here) or that their affirmations filed are misleading or incomplete (or at least no such suggestion was made).

25.  Mr KM Wong, in addition, also referred in his supplemental skeleton submission to three very old English cases: Evans v Jones (1867) 36 L.J.P. & M. 70; Re Law’s Goods (1872) LR 2 P & D 458 and Re Shepherd’s Goods [1891] P 323 60 LJP 102), which were concerned with the older version[13] of section 122 of the UK Act, and interestingly, the said older version is strikingly similar to our section 7(2), PAO.  In view of the resemblance of the two provisions, it would be instructive to examine these cases.

26.  Evans v Jones concerns an application made by the widow of a deceased testator to require the attesting witnesses of the will to attend court for cross-examination so as to give information as to the circumstances attending the execution of the will.  This was done for the purpose of enabling the widow to decide if she would dispute the will.  The court refused to grant the application.

27.  In Re Law’s Goods, the executor had already furnished a copy of the deceased’s will to the applicant, who however went on to make the application requiring the executor to attend court to be examined respecting the will.  The court refused to grant the order, apparently for the reason that the form of the order sought was irregular.

28.  Re Shepherd’s Goods, probate had already been granted to the executors.  However, the relatives of the deceased believed that the deceased had made several wills, and therefore made an application requiring the executors “to bring into the registry all the wills and testamentary papers of the deceased which might be in their custody or possession, or that they should attend to be examined, or be ordered to answer interrogatories”^[14].  The court ordered the executors to deposit the wills and other testamentary papers that they and their solicitors had admitted on oath having been in possession of.

29.  These cases, albeit that their facts and reasons are brief,  would appear to suggest that the court would only grant an application for examination if it could be satisfied that:

(1) There was undisputed or clear evidence that wills or testamentary papers existed (See Re Law’s Goods and Re Shepherd’s Goods)

(2) The application was made for the genuine purpose of tracing a deceased’s testamentary papers, and was not to be used for any ulterior motive (See Evans v Jones).

30.  The following matters, in my view, should therefore be borne in mind when a court considers whether an order for examination under subsection 7(2) should be made.

31.  First, because a valid testamentary instrument of a deceased person would usually have the effect of displacing interests under intestate succession as well as a deceased’s (presumably earlier) wills, a court has always been vigilant in guarding against any fraud or suppression of testamentary documents.  The extensive disclosure powers under section 7, PAO, must have been enacted for this purpose. If concealment or suppression are believed to exist, the court would likely be inclined to grant an order for bringing into court a deceased’s testamentary documents or examining a person in order to trace the same.

32.  Secondly, the consequence of default of an order made under section 7(2), PAO, is severe – a sanction of contempt of court.  Cogent evidence in such a case should therefore be required in support of an application for examination.  Hearsay evidence will hardly suffice.

33.  Thirdly, as illustrated in Evans v Jones, the purpose for which the application is issued should be genuine, usually for the purpose of tracing a deceased’s will and testamentary papers, which are reasonably believed to be in existence.  It should not be allowed to be used to fish for evidence.

34.  Lastly, all the relevant circumstances such as the nature and history of disputes concerning a deceased’s estate, the relationship of the person against whom an order is sought with a deceased, etc may be also taken into account.

35.  With the above in mind, I now turn to the application.

F. Any reasonable grounds for the defendant’s belief?

36.  According to the evidence relied on by the defendant in support of his belief, I tend to agree with Mr KM Wong that the evidence the defendant has adduced lacks cogency.

37.  The alleged incidents about Mr Dun having taken the deceased to execute a will took place some 12 years ago.  Since there is no suggestion that the defendant had seen a copy of a will or Mr Dun had deliberately concealed such document, the defendant’s belief (of the deceased having left a will) lacks reasonable basis especially when there was undisputed evidence of will searches with nil result having been conducted by both the plaintiff and the defendant.  

38.  As against Mdm Chan, the alleged conversations in the hospital and about the safe deposit were clearly hearsay.  Mdm Chan and the plaintiff have also denied the alleged conversations in their affirmations. In the absence of any suggestion of the latter’s evidence being untrue, the defendant’s hearsay evidence lacks cogency as it is not corroborated.

39.  All in all, for the reasons stated below, I am unable to accept that the defendant’s evidence is sufficient in showing that there are reasonable grounds for his belief that Mr Dun and Mdm Chan have knowledge of the existence of a will of the deceased.

40.  First, there is no evidence indicating the existence of a will.  

(1)  The defendant shortly after the deceased had passed away, instructed his solicitors to conduct a will search. Despite the extensive search, no will was found.

(2)  Also, in the plaintiff’s affirmation, the plaintiff gave detailed evidence on how she carried out an exhaustive search for testamentary documents.  It was deposed that after the deceased had passed away, the plaintiff had gone through the deceased’s belongings, the title deeds of the deceased’s properties and opened the deceased’s safe deposit box, but no will or testamentary papers had been found.

41.  Secondly, I find, as Mr KM Wong contended, the application, as will later be shown in the defendant’s evidence to be discussed below, was a fishing exercise.

(1) In one of his affirmations filed in support of this application, the defendant believed this application was his “last attempt to find out the whereabout (sic) of the will”.[15]

(2) The defendant has been all along asserting that the deceased had died intestate.  In the caveat proceedings mentioned in section A above, the defendant in the appearance to the warning as set out in §4 above, had stated the defendant’s interest was based on the alleged status of being the deceased’s child, but not on any interest under a will.  This contradicts his present stance.

(3) In a separate High Court action, HCA 25 of 2012, between the same parties as in this case, the defendant, as the plaintiff in that action, brought a claim against the plaintiff in the capacity of the court’s appointed personal representative of the estate of the deceased.  In an application for an order to be appointed as the deceased’s personal representative, the defendant averred in the supporting affirmation that he made the application in the capacity of a lawful and natural son.  Nowhere in the said affirmation did he allude to the existence of a will or mention any possibility that a will might have existed.

(4) After the representation order had been granted, the statement of claim in HCA25 of 2012 was filed.  In that claim, the defendant (the plaintiff in HCA25 of 2012) claimed that the plaintiff (the defendant in that action) had misappropriated the deceased’s estate.  In §1 of the statement of claim, the defendant sets out his capacity as the lawful and natural son, and one of the persons interested in the deceased’s intestate estate^[16].

(5) Similarly, there is no plea in that statement of claim that the deceased might have left a will.

(6) It is only when the defence was filed in this case, that the defendant for the first time mentioned such belief and made the aforesaid allegations against Mr Dun and Mdm Chan.  It smells of a last attempt to fish for evidence, and it should not be allowed.

42.  Finally, I think it is important to also bear in mind that the alleged events allegedly took place a long ago, and given the age of Mr Dun and Mdm Chan (who are in their 80s), it would be highly oppressive to subject them to cross-examination.  I also understand that it is not the defendant’s case that Mr Dun or Mdm Chan have any motive,  financial or otherwise, to suppress the will.

43.  For the forgoing reasons, I conclude that the defendant is unable to produce cogent evidence to show there are reasonable grounds for believing that Mr Dun and Mdm Chan have knowledge of any will of the deceased.

F. Conclusion

44.  The defendant’s summons is dismissed.  I grant a costs order nisi that the defendant do pay the costs of the plaintiff and of Mr Dun and Mdm Chan, including all costs previously reserved.

45.  Any application for varying the said nisi costs is to be made by summons within 14 days of the handing down of this decision, failing which the order is to become absolute.

46.  Within 14 days of the above costs order having become absolute, the costs are to be summarily assessed on paper in lieu of taxed costs if they cannot be agreed.  Mr Dun and Mdm Chan, and the plaintiff are to respectively lodge and serve their statements of costs within 14 days, and the defendant is to lodge and serve his response/opposition 7 days thereafter.