CHEUNG CHUN KEE v. SIU MUN YING

HCAP 22/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2012

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J U D G M E N T

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Introduction

1.  The Plaintiff Mr Cheung is the son of the late Mr Cheung Biu (“the Deceased”) in his first marriage.  The Defendant Madam Siu is the widow of the Deceased.  The Deceased passed away on 5 September 2010, at the age of 93.

2.  On 23 October 2010, Mr Cheung applied for the grant of probate as the sole executor and trustee appointed under the last will of the Deceased dated 26 January 2010 (“the Will”).  Under the Will, the Deceased devised all the estate to Mr Cheung for his own use and benefit absolutely. 

3.  On 13 December 2010, Madam Siu entered a caveat in the estate of the Deceased and in respect of which Mr Cheung issued a Warning to Caveator.  On 23 March 2011, Madam Siu entered an Appearance to Warning in which she alleged that:

(a) She is the lawful widow of the Deceased and one of the persons entitled to share the Deceased’s estate;

(b) She was the Deceased’s wife who immediately before the death of the Deceased was being maintained wholly by the Deceased, and she is entitled to have reasonable financial provisions from the Deceased’s estate under section 4 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481; and

(c) She has a life interest in the Deceased’s property in Kwun Tong.

4.  Madam Siu has subsequently entered 3 more caveats in the estate of the Deceased.

5.  On 3 September 2012, Mr Cheung took out the present action seeking the court’s pronouncement of the force and validity of the Will and decree of probate.

6.  Madam Siu filed an Acknowledgement of Service, stating that she will contest this action, but did not file any Defence.

7.  In view of Madam Siu’s inaction in the proceedings, Mr Cheung issued a summons seeking to discontinue this action and obtain a grant of probate or alternatively, an order for trial of this action, under O 76 r 10 of the Rules of the High Court.  Upon hearing the solicitors for Mr Cheung and Madam Siu in person, Master Levy ordered that this action be set down for trial by affidavit evidence.

Evidence

8.  Before me there are only affirmations adduced by Mr Cheung’s side, including 3 affirmations by himself, 1 by his elder sister Madam Cheung Chiu Yee (“Chiu Yee”), and 1 by Mr Yip Kam Fai (“Mr Yip”), a legal clerk worked at Messrs Christopher Li & Co, the solicitors instructed by the Deceased for drafting and execution of the Will.

9.  Madam Siu chose not to adduce any evidence.  Before Master Levy, there was no request to tender any witnesses for cross-examination and no direction was made for the attendance of any witnesses at trial.

10.  Below is a summary of the evidence of the witnesses, which is largely adopted from the written submission of Ms Liu, counsel for Mr Cheung.

11.  It has been the intention and wish of the Deceased (at least since 1995) to bequeath all his assets to Mr Cheung absolutely.  In 1995, the Deceased asked Chiu Yee to introduce a lawyer to him for the preparation of his will.  The Deceased also told her that he wanted to give everything to Mr Cheung upon his death.  Chiu Yee then introduced Messrs Lo & Yip to the Deceased and accompanied the Deceased to the office of Messrs Lo & Yip for the finalization and execution of a will in 1995 (“1995 Will”).  The 1995 Will appointed Mr Cheung as the sole executor and the sole beneficiary of the Estate.  The 1995 Will has been exhibited in Chiu Yee’s affirmation.

12.  In or about 1996, the Deceased told Chiu Yee that he has got married with Madam Siu.

13.  In 2010, the Deceased had some doubt about the validity of the 1995 Will and wondered if it would be affected by his marriage with Madam Siu.  He also noted that the 1995 Will was made more than 10 years ago by that time.  He raised his queries with Chiu Yee.  Both Chiu Yee and the Deceased were not clear about the legal position.  For the avoidance of any possible doubt, the Deceased asked Chiu Yee to find another lawyer for him to prepare a will that contains the same instructions as in the 1995 Will in order to make sure that the Deceased would pass all his property to Mr Cheung after his death.

14.  Chiu Yee then through her daughter Sandy located Messrs Christopher Li & Co (“CL&Co”). An appointment was made with CL&Co on 26 January 2010 for the making of the Will.  Chiu Yee accompanied the Deceased to the office of CL&Co on that date and met Mr Yip.

15.  The Deceased was on wheelchair when he went to the office of CL&Co.  Both Chiu Yee and Mr Yip confirmed that the Deceased was normal, mentally stable and capable of understanding and expressing himself.  The Deceased was of a sound mind. 

16.  Yip met the Deceased in the conference room of CL&Co. Chiu Yee waited outside the conference room.  In the conference room, Mr Yip slowly explained to the Deceased the contents of the Will, in particular that it was a general will by which he gave all his personal and real property to Mr Cheung upon his death.  Mr Yip slowly explained and read over the whole Will to the Deceased in Cantonese.  The Deceased confirmed to Mr Yip that he understood the contents of the Will and confirmed that the provisions in the Will were his wishes and instructions. 

17.  Mr Yip then left the conference room and invited Ms Fong Ka Po (“Ms Fong”), a solicitor of CL&Co, to enter the conference room to attest the execution of the Will by the Deceased.  After Ms Fong and Mr Yip entered the conference room, Ms Fong asked the Deceased if he understood the Will and agreed to its contents.  The Deceased confirmed to Ms Fong that he understood the Will and agreed to its contents.

18.  The Deceased then signed on the Will in the presence of Ms Fong and Mr Yip.  After Ms Fong and Mr Yip attested the execution of the Will, both of them also signed on the Will as witnesses and put the respective chops of their names on the Will.

19.  Mr Yip then put the original duly executed Will in a brown envelope and passed it to the Deceased.  The Deceased then left CL&Co with Chiu Yee.

20.  Mr Cheung was not involved in the preparation and execution of the Will and only came to know about the Will after it was made.

The Law

21.  Section 5(1) of the Wills Ordinance provides that:

“… no will shall be valid unless –

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(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.”.

22.  Madam Siu made no concrete challenge to the validity of the Will except that she said, in her submission, she has seen only a copy but not the original of the Will and on the last page of the copy, the date of the Will was incomplete in that it does not show which year the Will was executed.

23.  At the trial hearing, the original copy of the Will was shown to Madam Siu and it appears that the year of the execution date on the back sheet was covered by the paper corner of the instrument.

24.  In my view, the statutory requirements for the formal validity of a will are clearly complied with.

25.  The proponent of the Will has the legal or persuasive burden to show that[1]:

(1)    the will was duly executed;

(2)    the testator was of testamentary capacity;

(3)    the testator knew and approved of the contents of the will.

The standard of proof is on balance of probabilities. 

26.  Those who wish to dispute the validity of a will on the grounds that there is want of due execution, or of the requisite knowledge and approval, bears an evidential burden of putting the relevant ground of challenge in issue[2]. 

27.  In the present case, the evidence adduced by Mr Cheung, in particular, the evidence of Chiu Yee and Mr Yip in relation to the execution of the Will, is unchallenged.  There is nothing in their evidence capable of raising any doubt as to the validity of the execution of the Will or the testamentary intention of the Deceased.

28.  Madam Siu has adduced no evidence to raise any issue as to the validity of the Will.

29.  In my view, there is overwhelming evidence to prove that the Will is the true last will of the Deceased and the contents of which reflect accurately the testamentary intention of the Deceased.

30.  I pronounce that the Will is a valid will of the Deceased and probate be granted to Mr Cheung for the administration of the Deceased’s estate. 

31.  As mentioned, there is overwhelming evidence from Mr Cheung proving the validity of the Will. Madam Siu has all along been unable to make any reasonable challenge to the validity of the Will.  The reasons stated in her Appearance to Warning are not valid grounds for querying the validity of the Will.  Although Madam Siu is left with nothing from the estate under the Will as the widow of the Deceased, she is entitled to apply under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 for provision.  She has no reasonable grounds to resist Mr Cheung’s application for the grant of probate by virtue of the Will.

32.  In the circumstances, I make a costs order nisi that costs of Mr Cheung in this action be borne by Madam Siu, to be taxed if not agreed.  This costs order nisi will be made absolute upon the expiry of 14 days from the date of this decision.