RE SZE LIN ON

HCAG 14848/2020

[2024] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 14848 OF 2020

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DECISION

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Introduction

1.  This is an application for grant based on a homemade Will under the non-contentious probate jurisdiction of this Court.

Background

2.  The Deceased passed away on 22 April 2020 at the age of 68.

3.  On 3 December 2020, the Applicant filed the present application for letters of administration with Will annexed, relying on a Will written by the Deceased himself, and witnessed by two ladies, Madam Sze and Madam Wong. Under the Will, he did not name any executor and only disposed of his interest in a landed property to his brother, the Applicant.

4.  In the N4.1 filed herein by the Applicant, the landed property was the only estate left by the Deceased.

5.  The Court raised requisitions regarding, among others, capacity of the Applicant under the Will. The solicitor acting for the Applicant answered them. Due to Covid-19, the matter was dragged on for some time because the Applicant was stuck in China.

6.  In mid-2023, a legal point arouse from the answers provided by the Applicant, namely, the gift of landed property was void because one of the attesting witnesses was the “wife” of the Applicant, hence, contrary to section 10 (1) of the Wills Ordinance (Cap.30) (“WO”), heading with “Avoidance of gifts to attesting witnesses and their spouses”. The solicitor acting for the Applicant disagreed. On 13 June 2023, I wrote to set out the followings.

“ The matter has recently been raised before me on the issue: whether the gift to the spouse of an attesting witness under the will is or is not void under section 10 (1) of Wills Ordinance (Cap 30) (“WO”). Upon reading the materials, I set out the key events for the present purpose.

1. …

2. …

3. The present issue arose when requisition no 6 was issued on 27 March 2023 and answered by the affirmation of Madam Wong filed on 31 March 2023. It was then first made known to the Court that Madam Wong was the wife of the Applicant and Beneficiary of the landed property in the Will. It thereafter triggered the applicability of s 10 WO herein.

…

Having considered the submissions of the solicitor by letters of 21 April 2023 and 18 May 2023, and after a small research done on our part, I have the following preliminary observations to make.

(a) No authority has been provided by the solicitor to support his/her submissions and requisition no.9 remains unanswered.

(b) Will is an important document and WO lays down a number of formalities to be complied with. To avoid hardship in some instances, the legislature provides a number of “exceptions” for failure of formalities under some sections.

(c) The proposition that the attestation of Madam Wong can be disregarded and/or substituted by [Madam Hui] is artificial. S 5 (2) WO does not support them at all. S 5 (1) WO helps the applicant if any of the formalities under s 5 (1) WO is not observed (usually either only one attesting witness or even no attesting witness at all), sub-rule (2) then steps in to make the will “valid” if the court agrees, on the standard of no reasonable doubt, that the document embodies the testamentary intention of the deceased[1].

(d) On the other hand, s 10 (1) WO deals with another type of formality. It is usually known as “witness/beneficiary rule”, the underlying reason being that a witness must be independent and has no personal interest. The “disentitlement of interest” extends to spouse only, but not parents or children.[2] In fact, Madam Wong is a ‘good’ witness but her position in the Will simply makes the Applicant/Beneficiary (her husband) a ‘bad’ beneficiary.

(e) I agree that s 10 (3) WO provides an exception to s.10 (1) WO. If the subject Will were witnessed and attested by three persons, Madam Wong, [Madam Sze] and [Madam Hui]. It then helps the Applicant by saving the gift to him under the Will because the statutory exception allows the Court to disregard and skip the attestation of Madam Wong, and only relies on the other two.

(f) It appears to me that the solicitor is trying his/her best to assist the Applicant/Beneficiary and rescue his gifted property in the homemade Will by “merging” s 5 (2) and s 10 (3) WO. However, it is not accepted.

(i) No connection has been made within the legislation between the 2 “exceptions” under s.5 (2) WO and s.10 (3) WO.

(ii) No authority is produced to support the proposition.

(iii) In the Judgment of the Hon Chow J. (as he then was) dated 10 January 2017 in HCA 1966/2013 and HCA 660/2014, when facing with similar situation in our present case, after declaring that the will was validly executed, the learned Judge further declared that the disposition of the residuary estate in favor of the plaintiff under the will was void be reason of section 10(1) of Cap 30 (one attesting witness being his wife). The plaintiff might proceed for probate but the estate shall be distributed as on an intestacy[3]. S 5 (2) WO was not deployed to save the interest of the plaintiff in the will.

(iv) The proposition is not accepted because of the floodgate argument, ie s 10 (1) WO will effectively become repealed because one will always ask the court to disregard such the attestation of the problematic “witness” and then, apply to validate the will by triggering s 5 (2) WO. It cannot be the intention of the legislature.

(v) The author of Probate, Administration and Trustee HANDBOOK, Butterworths Hong Kong, 5^th Ed. also holds the contrary view against the proposition[4].

To conclude, I regret to inform that the submission/proposition of the solicitor is not agreeable to me. I shall be obliged to hear further from the solicitor within 42 days.

(1) If the above is agreeable, we will be discussing further how the matter is to be pursued.

(2) If the above is not agreeable, I shall see what further submissions, including in particular authority, the solicitor will put to see if this Court could be persuaded otherwise. At the same time, I shall also be obliged to receive written consent/comment of those persons who might be affected by the present application, i.e. person(s) who will be entitled to share in the estate of the Deceased if he had died intestate.”

7.  The solicitor replied on 25 July 2023 and made another submission based on new facts and another provision of the law.

“We submit that requisition 9, i.e. the attestation of [Madam Wong] can be disregarded is due to the fact that after taking further instructions, we note that at the time of the execution of the Will, the deceased has expressly invited a number of his relatives to attend the scene so as to witness his signature on it. Our observation and submission is based on our interpretation of S.5 (1) (d) (ii). We also respectfully submit that S. 5 (2) plays no role as a result.

S.5 (1) (d) governs the manner of a witness of a Will:-

“…

(d) each witness either-

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

We are of the view it is not a statutory requirement that each witness should attest and sign on the will but that it is an “either/or” situation that a will is still regarded as properly executed when the witness acknowledges the testator’s signature at the scene by witnessing the same. Hence, it is our submission that the fact that [Madam Hui] being another witness to the Will is not an artificial one because she can still be regarded as a proper witness under S.5(1)(d)(ii), making the will a valid one.

…”

8.  It became apparent that the solicitor was giving up his earlier legal argument but then tried to run a new one, relying on his interpretation of another provision under WO. Hence, the following directions was issued on 5 September 2023.

“It is noted that the applicant/solicitor is giving up and no longer relying on section 5(2) WO. Instead, section 5(1) (d) (ii) WO has been newly raised and relied upon for the first time.

As written consent/views of those persons who might be affected has yet to be obtained and produced, we will keep the matter in abeyance for the time being. Please do inform the court of the development in due course.”

9.  On 15 December 2023, an affirmation of the wife of the Deceased was filed.

“1. 除有另外指明的情況外，本誓章的內容是根據本人所知，本人確定相信此誓詞之內容真實無誤。現根據香港高等法院遺產承辦處2023年6月13日之信函及提問，替申請人作出回應誓章，交代施連安的遺產事宜。

2. 本人是死者施連安的合法妻子。死者於生前只曾與我結婚，我們二人沒有子女，而據我了解，亦沒有其他人曾替死者誕下子女。死者生前患有疾病，一直希望處理他由其母親繼承的物業(即地址…)一半業權；因為是從其母親手上繼承的物業，他的意願是留給他哥哥，即此次的申請人，此外死者沒有其餘資產。現時夾附在本誓章列為<WLH-1>為本人與死者的結婚證副本及本人身分證副本。

3. 於是，2018年3月16日，我與死者﹑死者哥哥即申請人﹑申請人太太及其子女，及其他親友，一行數人先一起飲茶，之後便前往香港北角英皇道129號月明樓10樓E室。死者在眾人面前訂立遺囑簽署；現時夾附在本誓章列為<WLH-2>為該遺囑的真實副本，我確認上述立遺囑人的簽署是出自死者。

4. 同時，本人知悉，香港的遺產認證一般而言是根據有立遺囑及沒立遺囑的兩種方式處理，如有立遺囑的話則是以遺囑的意願作處理，並以最後所立的遺囑為準及有效。如果在死者沒有立下遺囑的情況下，則本人是死者遺產的最優先申請人及唯一受益人。”

10.  Although the affirmation of the wife of the Deceased appeared to be comprehensive, it did not say if she had or had not been informed of the exchange of the said legal views between solicitors acting for the Applicant and this Court.

11.  Upon thought, on 8 May 2024, I informed the solicitor that this Court would rule on the matter or hand down a decision and see if he or she had any other submission to make, and if so, do so within 28 days. Up to the date of the present Decision, the solicitor has not made any further reply or submission.

Discussion

12.  To start with, section 5 (2) WO can never assist the Applicant. It suffices for me to repeat what were stated in the above directions issued on 13 June 2023. In any event, the solicitor acting for the Applicant is no longer pursuing the same.

13.  As to the new argument of section 5 (1) (d) (ii) WO, I also decline to accept it.

14.  The submissions as per the letter of 25 July 2023 is again, artificial. In short, it purported to “interpret” the word “his” in sub (ii) as that of the Deceased. However, it can never be the case.

(a) There is no authority provided to support such interpretation.

(b) Such interpretation is against usual practice of executing a Will in Hong Kong. The drafting of our section 5 (1) (a) to (d) WO is clear. Sub (a) to (c) refer to the signature of the testator, and sub (d), those of the attesting witnesses. In the later, 2 scenarios are anticipated.

(1) The witnesses attested and signed the Will (or acknowledged their signatures) before the testator.

(2) Each of the witnesses attested and signed the Will (or acknowledged their signatures) at different times, before the testator.

It is “attesting” witness, not “eye” witness, being named in sub (d). It is also the formal requirement under our law for the attesting witnesses to “sign” on the Will.

(c) The above interpretation is also supported by a reading of the following authorities from the research done by the Probate Registry.

(i) In Couser v Couser [1996] 3 All ER 263, it read:-

“In this case, there is no doubt in my mind that one can with absolute safety say: the testator had signed the will before he brought it to the Bovingdon’s home; the testator acknowledged his signature first to Mrs Bovingdon, who then physically signed it. Secondly, when joined by Mr Bovingdon, the testator again acknowledged by what he was doing (with Mrs Bovingdon’s full awareness and knowledge) that the will was signed by him and that it was his signature. Accordingly, in the presence of two or more witnesses present at the same time (the two witnesses Mr and Mrs Bovingdon), he acknowledged the signature previously attached by him. Of the two witnesses, one of them had already signed and the other thereafter signed. Mr Bovingdon clearly attested and signed the will in the presence of the testator; Mrs Bovingdon had already done so, but by her very protests and her telling Mr Couser that he should go to the bank and have the job done properly (which protests continued throughout the conversation and did not, I find, stop,—she was not struck mute when her husband entered the room), she continued to acknowledge her signature…” (emphasis added)

(ii) In Sangha v Sangha and other [2023] 4 WLR 60, the Court of Appeal said:

“It remains a requirement of section 9 of the Wills Act 1837 that the required steps take place in sequence, so that paragraph (c) must be fulfilled prior to paragraph (d). Thus, the testator must sign (or the will be signed at his direction) either in the presence of both witnesses together, or must acknowledge his signature in the presence of both together. This is an essential act. The witnesses must then confirm that they have witnessed this essential act. They do this either by signing the will, or, if they have already signed, by acknowledging their signature after the essential act (paras 92–93, 108, 109).”

15.  To sum up, the disposition made to the brother of the Deceased by the Will is void because the wife of the brother acted as an attesting witness thereof. It is squarely caught by s 10 (1) WO, commonly known as “witness/beneficiary rule”.

16.  The statutory exception under s 10 (3) WO does not help the Applicant because there were only 2 attesting witnesses on the Will.

17.  S 5 (2) WO also does not help because it deals with other formality matters and the solicitor acting for the Applicant is not pursuing it any more.

18.  S 5 (1) (d) (ii) WO refers to the signature of the attesting witnesses (who must sign on the Will), but not the testator. Hence, such provision does not help the Applicant either.

19.  Having said that, for future reference, I would further say that the subject Will is still a “valid[5]” one and hence, this Court will not mark it with “Probate Refused” to avoid any misunderstanding. In any future application for grant regarding the estate of the Deceased, the Will must be produced and ultimately, it is “Letters of Administration with Will annexed” to be issued, if entitled to.

20.  It remains for parties, including in particular the wife of the Deceased and the brother[6] of the Deceased, to obtain independent legal advice to see how the matter should be pursued further. If the wife agrees that the wish of her late husband is to be perfected, they must be better way(s) to achieve the same.

Conclusion

21.  To conclude, I will make the following orders.

(a) The present application is dismissed without prejudice to the right of the wife of the Deceased and the Applicant (based on different capacity) to further apply for grant of the Deceased.

(b) A copy of this Decision shall be sent to the wife of the Deceased.

(c) No order as to costs.