RE MA JOYCE

HCAG 4459/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 4459 OF 2005

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D E C I S I O N

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Application

1. This is the 3rd application on the new Non-Contentious Probate List.

Background

2. The Deceased died intestate in Shanghai leaving the applicant, being her natural son, entitling to her estate.  He filed his application for the grant on 14 May 2005.  In the supporting affirmation, it was stated, inter alia, that:

(a)	The Deceased cohabited with one Mr. Chan in 1966.
(b)	The applicant was born out of the cohabitation.
(c)	Mr. Chan died in 1993.
(d)	The applicant worked in Shanghai and as such, the Deceased used to visit and stay with him.  During the last visit there, the Deceased discovered that she had liver cancer.  In order that she could be looked after by the applicant, she was admitted to a hospital in Shanghai and unfortunately, died there subsequently.  It was always the intention of the Deceased to return to Hong Kong with the applicant after her discharge from the hospital.

3. On 18 June 2005, 4 requisitions were raised:

“	1.	Please file an affidavit from a competent person to prove the cohabitation of the deceased with Chan Ying Hung.
	2.	It is observed from (4) that one “Chan Nim Cho Josephine” was named daughter of Chan Ying Hung.  Please advise by letter the relation of Chan Nim Cho Josephine to the applicant and the deceased.
	3.	Please advise by letter:
		(i)	the date on which the deceased last left Hong Kong for China[, and]
		(ii)	why the deceased was described as a single woman at death while it was stated in para. 4 of (1) that she was never married to any person.
	4.	Please file a photocopy of the Hong Kong identity card and a full set of the travel document of the deceased.”

4. The solicitor for the applicant replied on 29 June 2005:

“	1.	We are at a loss to this requisition.  The only thing that we can prove the cohabitation is to enclose the original letter of 18th May 2005 from the Marriage Registration & Records Office of the Immigration Department from which you will note that there is no record of marriage of the deceased.
	2.	Apparently, “Chan Nim Cho Josephine” is a half blood sister of the applicant but she has no relation to the deceased.
	3.(i)	We are obtaining instructions from the Applicant as to the date when the deceased last left for China to visit the Applicant and will revert.
	3.(ii)	If it is not correct to describe the deceased as a single woman, may we please have your direction as to her proper description[?]
	4.	We are instructed that the deceased’s travel document has been retained by the relevant authority in China.  We enclose an extract to the relevant pages of the Entry Permit with the endorsement to that effect.  We also enclose by way of filing a copy of the Hong Kong Identity Card of the deceased.”

5. On 29 July 2005, the officer further raised 2 requisitions.

“	5.	Please advise whether there is any competent person who may comply with req. no. 1 to prove the co-habitation of the deceased.
	6.	Please comply with req. no. 3(ii) (Your attention is drawn to para. 6.120 of Tristram & Coote’s Probate Practice, 29th ed.)”

6. A quick response was made on 1 August 2005 whereby it was said that:

“In response to Requisition No. 5, we are instructed that there is no competent person who can comply with requisition 1 to prove the co-habitation of the deceased.  You will appreciate that the co-habitee with the deceased was a very prominent solicitor and as such the co-habitation might not be known to many common friends of the parties.  In order to [resolve] this issue, we wonder whether the birth certificate of the applicant, which records the deceased and the cohabitee as mother and father respectively, can be served as evidence of the relationship of the applicant’s natural parents.  Kindly tick off requisitions 1 and 5 accordingly.

As to requisition 6, are we correct to use the description “Spinster”.  Please let us have your guidance.  (1) will be amended and reaffirmed accordingly.”

7. The matter was then referred to me and, on 21 September 2005, I directed:

“	7.	The applicant to obtain the relevant movement of the deceased from the Immigration Department for consideration.
	8.	The solicitors to inform the court what steps have been taken to locate the possible witness [, and]
	9.	to obtain the Registered Particulars of Chan Ying Hung; the deceased and the applicant for considerations.”

8. On 11 November 2005, the solicitor wrote to state that:

“While our client will use his best endeavour to comply with your requisitions, we feel with due respects, some of the requisitions may not be reasonable and in fact cannot be complied with.

Requisition No. 7 may be redundant not only it takes time to comply but also it can be dealt with in another manner.  Will you be prepared to accept an affidavit of domicile either from the applicant or from one of the relatives of the deceased[?]

As to Requisition No. 9, it is totally impossible.  Our client does not have the identity card number of the deceased and will not be able to obtain the Registered Particulars.

Incidentally, will you please advise which of your 9 requisitions have been complied with by us[?]

Before we consider to apply for an appointment to make oral submission to the Probate Master, please let us have your kind responses to all our answers in this reply and our previous replies.”

9. Then, on 26 November 2005, a notice of appointment was issued fixing a date before me to deal with all the above 9 requisitions.  On the scheduled appointment, Mr. B. Ma appeared for the applicant.  He prepared a short skeleton to help me to understand his position.  Upon hearing from him, I reserved my decisions to be delivered.  I now do so.

Ruling

10. For our purpose, I classify the requisitions under 4 heads, namely:

(1)	Cohabitation,
(2)	Domicile,
(3)	Description of the Deceased, and
(4)	The Daughter of Mr. Chan.

Duty to Make Inquiries

11. To start with, the questions of both cohabitation and domicile hinge on an important aspect of this Court, namely, the probate jurisdiction is inquisitorial.  Under rule 5(1) of the Non-Contentious Probate Rules (“NCPR”), it states that:

“The Registrar shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.”

Hence, the Registry shall make sure that the grant is issued to the right and proper person so entitled under our legal system.

12. Entitlement to the grant is important, and marital relationship (and hence marriage or cohabitation?) as well as domicile (and therefore the governing law of the entitlement of grant and distribution of the estate) are to be examined carefully.

13. It should also be noticed that the Registrar, though being imposed a duty to inquire, has only limited means to discharge such duty.  He does not send officers to conduct investigations.  He does not have any data bank storing information relating to families.  He has no movement record of the deceased and the applicant. The Registrar only vets the affidavits and papers filed and then raises requisitions out of them. 

14. As I indicate from time to time to the profession, this court is adopting a reasonable and practical attitude in raising requisitions.  This court will not ask for a marriage certificate for couples married in accordance with ‘three books and six rites’.  This court will not request for the production of a birth certificate for a person born in a small village in the Mainland in 1920.  This court will not insist on a duly authenticated death certificate for a victim died in the Tsunami.  This court is not going to ask the applicant to target at mission impossible.

15. Nonetheless, in my experience, the Registered Particulars kept by the Immigration Department often helps me to discharge or discharge part of the duty of inquiry.  They are useful because they contain particulars about some of the family matters disclosed to the government, some time ago, by the deceased, the applicant and/or the family members.  They might not be conclusive but, often, could offer some assistance.  More important, they could be easily done by the applicant. 

16. Bearing in mind the duty to inquire, I proceed to examine the requisitions relating to cohabitation and domicile.

Cohabitation

17. The relevant requisitions are nos. 1, 5, 8 and 9.  Mr. Ma attempts to argue that the birth certificate of the applicant and the record from the Immigration showing that “no record of marriage of the Deceased in Hong Kong” suffice.  It has been said that there is no competent person to prove the cohabitation.  Further, while the applicant can obtain the Registered Particulars of the Deceased and himself, it is very time consuming.

18. I respectfully disagree. 

19. First, it is the Registrar who should be satisfied with the answers to the inquiries.  Each case must depend on its own facts.  It is trite law that the burden of proof lies on the applicant and the standard, balance of probabilities.  In our case, I agree that the birth certificate shows that the applicant was born by the Deceased and Mr. Chan.  Further, the Immigration keeps no record of marriage between the parents.  Is this sufficient?  What about Chinese customary marriage in Hong Kong?  What about marriage in the Mainland or elsewhere?  The Court also notices that there is a ‘daughter’ named in the death certificate of Mr. Chan.  Hence, in my view, it is not unnecessary and unreasonable to ask for more, if possible.

20. Second, requisition no. 8 appears to hit the right point.  Mr. Ma is now offering the following for me to consider:

“… Will the Court accept the sister-in-law of the deceased, … who is the wife of the deceased’s brother … a competent person to make such affidavit[?]  If so, subject to the acceptance of such affidavit to be filed, will the Court kindly consider to tick off requisitions 5, 8 and 9. …”

So, there is indeed an available witness. 

21. Third, requisition no. 9 can be complied with partially.  I will not be pursuing further on the Registered Particulars of Mr. Chan because that is out of the reach of the applicant.  However, the remainder should not be waived.  “Very time consuming” can hardly be a good explanation.  My knowledge tells that it usually takes one to two months to get the information from the Immigration.  With the benefit of hindsight, if the applicant did so as per my directions on 21 September 2005, he probably could have been obtained the same without waiting further.

Domicile

22. Requisition nos. 4 and 7 deal with the domicile of the Deceased.  If this court found that she died domiciled in PRC, rule 29 NCPR was to be invoked normally.  Hence, I can never agree with the following proposition from Mr. Ma:

“…… Although it is possible to obtain the relevant records of the deceased from the Immigration Department, such requisition may be redundant since even the deceased was domiciled in PRC, the Applicant is still the only person entitled to the estate under the law of PRC.”

23. Another difficulty with Mr. Ma’s argument is that he has not really objected requisition no. 4.  Quite to the contrary, he did try to comply with it by providing a copy ID card of the Deceased and extracts of 2 pages of her Entry Permit showing some personal data, but not “in-and-out record”.  He further informed the court that the travel document had been retained by the authority and was therefore not available.

24. It is obvious that requisition no. 4 was raised because the officer wanted to clarify the Deceased’s domicile.  Once the applicant has agreed to answer it in principle, I see no logical reason to refuse subsequent follow-up requisition(s), i.e. requisition no. 7 in our case, especially when it could have been done.  Either the travel document or the movement record can help me to have some objective criteria to determine the domicile of the Deceased.

25. The remaining 2 issues are relatively minor.

The Description of the Deceased

24.              The deceased was described as ‘Single Woman’ in the heading of the Affirmation, but, ‘never married to any person’ in the body thereof.  It is self-contradictory because, by definition,

“… A divorced person should be described in the oath as a ‘single man’ or ‘single woman’.” (para. 6.120 of Tristram & Coote’s Probate Practice, 29th ed.)

25.              Having heard from Mr. Ma, I believe that he is not asking me to clear off requisition nos. 3 and 6 because:

“	(i)	……
	(ii)	It is admitted that the deceased should not be described as Single Woman.  Para. 6.120 of Tristram & Coote’s Probate Practice, 29th ed. only dealt with what circumstances “Single Woman” should be adopted.  Your guidance as to how the deceased should be described.  Will “Spinster” be appropriate[?]”

He apparently complains that the officer should have made his life easier by skipping the reference in Tristram & Coote’s, but suggesting expressly the description of ‘Spinster’. 

The Daughter of Mr. Chan

26. Finally, as to requisition no. 2, Mr. Ma, again, does not need a clear off.  He is asking me to check if it has been satisfactorily answered by him.  He told me that he was not informed by the officer of either way.

27. Mr. Ma raises a good point of practice.  Generally, I do not consider that there will be any misunderstanding between the practitioners and the Registry because the correspondence is usually self-explanatory. If a requisition is not pursued further by the officer, the solicitor can safely assume that it has been answered.  However, I have no doubt that a positive confirmation must be a better way of communication.  And, I will direct the Probate Registry to adopt such practice accordingly from today’s onwards.

Conclusion

28. In the end, I therefore sum up my decisions as follows:

(a)	Requisition nos. 1 and 5 are to be complied with.  The sister-in-law of the Deceased shall file an affidavit with the court confirming the cohabitation of the Deceased and Mr. Chan.
(b)	This court confirms that requisition nos. 2 and 4 have been answered satisfactorily and therefore ticked off.
(c)	The solicitor has not answered requisition no. 3(i).
(d)	The Deceased shall be described as ‘Spinster’ in the heading of (1) which is to be amended accordingly in its due course.  Requisition nos. 3(ii) and 6 will then be cleared off.
(e)	Requisition no. 7 is to be complied with.
(f)	Requisition no. 8 has become redundant and is ticked off.
(g)	Requisition no. 9 (apart from the reference to Mr. Chan) is also to be complied with.