WONG OI KING AND ANOTHER v. LAI LOK YEE CATHERINE AND ANOTHER

CACV 392/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 392 OF 2002

(ON APPEAL FROM HCAP NO. 1 OF 2000)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2. This was an appeal from the judgment of Deputy High Court Judge A Cheung (as he then was) dated 16 August 2002 decreeing probate in solemn form of law of a document in Chinese dated 6 February 1966 ("the Chinese document").

Background

3. The late Mr Lai Ho Kai ("the deceased") died on 29 September 1996, aged 49. He had married the 1st plaintiff in December 1993. There were no children of that marriage but the deceased had a stepson namely, the 2nd plaintiff, being the son of the 1st plaintiff from an earlier marriage who was 15 years old at the date of the deceased's death. The 1st and 2nd defendants are respectively the elder sister and elder brother of the deceased who have an interest in the estate in the event of any intestacy.

4. The issue before the judge below was whether the Chinese document was the will of the deceased. The 1st plaintiff had applied for a grant of administration ad colligenda bona of the estate of the deceased. The defendants entered caveats and, subsequently, appearances to warnings issued by the 1st plaintiff. This led to the probate action with the plaintiffs asking the court to decree probate of the Chinese document in solemn form of law and, in the alternative, that the court should pronounce that the 1st plaintiff and the 2nd plaintiff are interested in and entitled to share in the estate of the deceased as his widow and stepson to the exclusion of the defendants or any other natural brother or sister of the deceased. The defendants contended that the Chinese document was not a valid will but the main challenge at the trial which took some 10 days was as to its due execution.

5. It is unnecessary for the purposes of this appeal to go into the evidence set out in great detail in the judgment save to say that the judge found that the deceased loved and liked the 2nd plaintiff and genuinely treated and regarded him as his own son. He reached the conclusion that the Chinese document was a genuine document made by the deceased. The judge's findings of fact were not challenged on appeal.

6. The judge rejected the defendants' argument that the Chinese document should not be admitted for probate because its terms were of an equivocal character and it had not been proven to have been written animo testandi. That was the only issue that arose in this appeal. At the conclusion of the hearing, the appeal was dismissed with reasons to be handed down later which we now do.

Animo testandi

7. The agreed English translation of the Chinese document (with minor cosmetic amendments) appears in paragraph 3 of the judgment reproduced below:

"	Instrument Maker:	Lai Ho Kai Identity Card G419185(1)
	Successor:	So Nim Cho Derek Identity Card Z408228(2)
	Witnesses:	Wu Siu Wai (Duty Doctor of The First People's Hospital of Fo Shan City)
		Wong Siu Wai (Sai Kung Regional Service Department)
		Xing Li Yu (Room 614, Kai Yue House, Kai Yip Estate)

I, Lai Ho Kai hereby invite Xing Li Yu to write down on my behalf the following instrument of declaration.

From 6 February 1996, I admit and declare my stepson So Nim Cho Derek to be my lawful successor, (who shall be) entitled to share the rights of inheritance as the same as if he were my lawful and natural son. On my death, (he) shall lawfully inherit all my properties, and enjoy the same distribution as if he were my lawful and natural son.

	This is made as evidence.
Signature of the Instrument Maker:	[illegible signature]
Signature of the Witnesses:	[Wu Siu Wai's (purported) signature]
	[Xing Li Yu's (purported) signature]
	[Wong Siu Wai's (purported) signature]
	Scribed by Xing Li Yu at The First People's Hospital of Fo Shan City 6 February 1996 "

8. Counsel for the defendants submitted that the Chinese document was "equivocal" because the Chinese document evinced an attempt to adopt the stepson and was merely descriptive of the rights of an adopted son. He relied on Napper v Napper (1846) 10 Jur 342 for the proposition that "if the document is equivocal, to be really testamentary, it must derive that character from the evidence."

9. The passage from the judgment of Sir H Jenner Fust upon which Mr Cheng placed heavy reliance was as follows:

"... it may be dispositive, and it may be revocatory, and yet, on the face of it, it does not bear the character of a testamentary paper; it is equivocal, and, if it be really testamentary, it must derive that character from the evidence." (emphasis provided)

Those observations were made in the context of a deceased leaving a paper in the following terms:

"As I intend to make another will, owing to some alterations in my circumstances since I made my last will and testament, I hereby certify and declare by this, that I do desire and wish that all and any my former will and testament made and executed by me previous to the date of this declaration shall be null and void to all intents and purposes, and that my meaning is, to make some other, and execute the same the first opportunity, or that my said personal property shall be divided among my children according to law."

The real question to be decided there was whether the paper was dispositive. The court, looking at the whole contents of the instrument, considered it not to be the case. All the deceased there was saying was, in the words of the judge:

"I intend to make another will, but, if I do not, then my property is to go according to law."

It was held that that was no more than an expression of an intention to die intestate.

10. In my judgment, Napper v Napper does not assist the defendants. The paper in that case was said to be "equivocal" because despite the declared intention "to make another will", no fresh disposition followed. The deceased's testamentary intention was thus in doubt. Had the necessary testamentary intention been present, the fact that the paper might have dealt with other matters would not have affected its testamentary character. In the present case, the judge found the necessary testamentary intention to be present in the Chinese document. He reasoned thus:

"... in my judgment, the necessary testamentary intention appeared clearly from the Chinese document itself. Although the word 'will' in English or Chinese was not specifically used, the 2nd Plaintiff was specifically called a 'successor' or 'heir' in the Chinese document. Under the document, the Deceased specifically recognized and declared that his stepson, the 2nd Plaintiff, was to become his 'lawful successor' as from 6 February 1996 and he went on to describe his right to succession to be the same as that of a natural son's. Furthermore, after his death, his stepson, the 2nd Plaintiff, was to succeed to all his properties, which were to be distributed to him as if he were his natural son.

138. In my judgment, the Deceased was not so much recognizing the 2nd Plaintiff as his 'natural son' as such. He continued to call the 2nd Plaintiff his 'stepson' in the Chinese document. The reference to a natural son was made in relation to how his properties were to be distributed to the 2nd Plaintiff, his stepson, after his death. The more important point in the present context is that under the Chinese document, the Deceased was making provision for the distribution of his estate after his death. He was directing that the 2nd Plaintiff should share in his properties after his death and that the method of sharing was to be by reference to how a natural son of his (if he had one) were to share in his estate after his death."

11. In my judgment, the judge's reasoning was unimpeachable. The Chinese document was indisputably dealing with what was to happen on the deceased's death: whilst, arguably, the precise extent of the 2nd plaintiff's interest in the estate of the deceased might be said to be unclear (but this would be a matter to be resolved between the 1st and 2nd plaintiffs themselves and no one else), provision was plainly being made by the deceased for his stepson, to take effect from his death. Adoption, on the other hand, has to do with the living. The fact that the Chinese document might have sought (unsuccessfully) to effect an adoption did not and could not detract from the fact that the Chinese document evinced a clear testamentary intention. Having an intention to adopt the 2nd plaintiff and to make provision for him in the event of the deceased's death are not mutually exclusive objectives: one could happily co-exist with the other. This is in contrast to Napper v Napper where an intention to die intestate could not co-exist with the paper being dispositive. For these reasons, the defendants' challenge was rightly rejected by the judge.

Hon Cheung JA:

12. I agree.