RE HU HSIAO SHENG

HCCI 2/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CITATION NO 2 OF 2012

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REASONS FOR JUDGMENT

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1.  On 24 October 2012, I allowed the applicant’s application for probate of the will of the Deceased dated 4 April 2000 (“the 2000 Will”) be granted to her. These are the reasons for my judgment.

Background

2.  The applicant was the Deceased wife and widow. By the 2000 Will, the Deceased bequeathed his estate to her and his nephew.  He also named the applicant as the sole executrix.  The Deceased had made another will dated 26 October 2003 (“the 2003 Will”) purportedly as his last will, bequeathing his estate in accordance with the provisions therein, which are substantially different from those in the 2000 Will.  The 2003 Will appointed Mr Lee Tin Yuen Kenny and Mr Tay Liong Sin as executors.  The Deceased die in Hong Kong on 7 February 2004.  Both the applicant and Mr Lee then applied for probate of the 2000 Will and the 2003 Will respectively.

3.  On 2 November 2006, Mr Lee commenced HCAP13/2006 against the applicant.

4.  In August 2009, the applicant reached an agreement with all persons who may have an interest under the 2003 Will that no objection would be made to the grant of probate of the 2000 Will to her.  Mr Lee then consented to an order made on 31 August 2009 that HCAP13/2006 be wholly discontinued.  Mr Lee also withdrew his application for grant of probate of the 2003 Will on the same day.

5.  On 2 February 2012, the applicant took out a citation served on Mr Lee and Mr Tay and all other interested persons to show cause why probate of the 2000 Will should not be granted to her.  None of the persons cited had entered an appearance.  The applicant then applied, ex parte, for grant of probate of the 2000 Will.  The master directed her to follow the procedure set out in rule 47(2) of the Non-Contentious Probate Rules as explained in Sin Sin Yu Tella v Man Lai Chi [2010] 3 HKC 522.  The Notice of Motion subsequently came before me.

No animus testandi

6.  The only issue before me is whether the 2003 Will is the last will of the Deceased.  If it is not, then the 2000 Will remains the Deceased’s last will and probate should be granted to the applicant.

7.  Section 5 of the Wills Ordinance, Cap 30 provides :

“(1) Subject to sections 6 and *[23D], 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.

(2) A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.”

8.  Sub-section (2) applies to the 2003 Will because it was not attested to by any witness.  In other words, the 2003 Will can be deemed to be duly executed if the court is satisfied that there can be no reasonable doubt that it embodies the testamentary intentions of the Deceased.

9.  Animus testandi, or testamentary intent, means an intention to make a revocable ambulatory disposition of the maker’s property which is to take effect on death : Corbett v Newey [1996] 2 All ER 914, per Waite LJ at p 921a-b; Re Leung Wai Jing [2004] 1 HKC 453, per Yam J at para 11.

10.  The uncontested evidence of Mr Tay is this :

“2. In or about September of 2003, the Deceased approached me and Lee Tin Yuen Kenny (李天源), the other person named as executor in the purported Will, asking each of us for a loan of HK$200,000.00 as the Deceased had intended to use the money to purchase a plot of burial ground in a cemetery in Fuzhou in mainland China. As the Deceased did not know when he could repay the loads, he had promised to us that if we would lend him the money, he would repay each of us with HK$500,000.00 upon his death out of his estate.

3. To support his promise, the Deceased had given the purported Will to Lee Tin Yuen Kenny (李天源) providing that I and Lee Tin Yuen Kenny (李天源) would receive HK$1,000,000.00 as our reward for being the executors of the purported Will. The Deceased had said that the HK$1,000,000.00 was termed as our reward rather than repayment of loan because the Deceased did not want to disclose that he had borrowed money from us.

4.  Ultimately, neither I nor Lee Tin Yuen Kenny (李天源) had advanced the sum of HK$200,000.00 or any money at all to the Deceased.  The purported Will only came into being in consideration that we would lend money to the Deceased.  As the consideration wholly failed, the Deceased most certainly did not intend the purported Will to be his true and last will.”

11.  It follows that the Deceased did not intend the 2003 Will to be a testamentary instrument.  He intended it to be an arrangement whereby the loans to be advanced by Mr Lee and Mr Tay could be repaid.  Absent the requisite animus testandi, the 2003 Will is not a valid, provable will.  It should be ignored and probate of the 2000 Will should be granted to the applicant.

12.  For those reasons, I allowed the applicant’s application.