CHU KWOK KEE KOOKIE v. CHU KWOK BING AND ANOTHER

HCAP 8/2018

[2018] HKCFI 1806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2018

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D E C I S I O N

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Introduction

1.  In this action, the 1^st defendant issued 4 summonses, essentially seeking a dismissal of the plaintiff’s writ of summons (with the endorsed statement of claim) and for a declaration that the will made by the deceased (“Deceased”) on 24 October 2013 was her last will.

2.  The Deceased was the mother of the plaintiff (P), the 1^st defendant (D1) and the 2^nd defendant (D2). The Deceased married Mr Chu Tse Wen in 1943.  Her husband predeceased her and passed away on 12 February 2013 in Hong Kong.  The Deceased herself passed away on 21 November 2016.

3.  The background leading to the parties’ disputes have been set out in detail in P’s statement of claim (“SOC”) and also D1’s defence and counterclaim (“D&C”).

4.  It would appear from the parties’ respective pleaded case that :-

(i)  On 22 November 2010, the Deceased made a will appointing P as her sole executor and, amongst other things, bequeathed her property at Mei Foo Sun Chuen to all her three children in equal shares and further directed that her property in Shanghai be sold with the first RMB 3m of the sale proceeds be given to D1 and the balance to be shared between P and D1 equally (“1^st Will”);

(ii)  According to P, at around the same time in 2010, another Chinese will was made by the Deceased appointing P as her sole executor (“2^nd Will”);

(iii)  On 20 March 2013, the Deceased made a will in English revoking her previous wills, appointing D1 and D2 respectively as her executor and executrix and bequeathing all her assets to D1 and D2, save that the Shanghai Property was given to D1 solely, and P was excluded in this will (“3^rd Will”);

(iv)  According to D1, on 11 October 2013, a medical statement form (“Medical Form”) was issued by the Department of Medicine & Geriatrics of Princess Margaret Hospital for the Deceased’s application under the Social Security Allowance Scheme certifying that the Deceased was then mentally fit;

(v)  On 24 October 2013, the Deceased executed another will in Chinese, revoking all her previous wills and appointing D1 as her sole executor and the sole beneficiary of her estate, excluding both P and D2 (“4^th Will”);

(vi)  On 28 October 2013, the Deceased executed a general power of attorney appointing D1 as her attorney (“POA”);

(vii)  As pleaded by D1, on 15 January 2014, the Deceased executed an enduring power of attorney appointing D1 as her attorney (“EPA”) and a Dr Shirley Ip, a specialist in Geriatric Medicine, certified that the Deceased was then mentally capable as defined under the Enduring Power of Attorney Ordinance, Cap 501;

(viii)  As pleaded by D1, on 10 April 2014, Dr Chen Chia-lu Sylvia JP, a specialist in psychiatry certified that the Deceased was then mentally sound and mentally capable;

(ix)  On 21 July 2014, Dr Wong Yee Him John issued a medical certificate and in his opinion, the Deceased was then incapable by reason of mental capacity of managing and administering her property and affairs, as defined in the Mental Health Ordinance, Cap 136;

(x)  On 28 July 2014, Dr Wong Chung Kwong JP issued a medical certificate and in his opinion the Deceased was then incapable by reason of mental capacity of managing and administering her property and affairs, as defined in the Mental Health Ordinance, Cap 136.

5.  It is essentially P’s case in the SOC that the Deceased did not have the requisite testamentary capacity at the time of execution of the 3^rd Will or the 4^th Will and P is seeking declarations that both those wills are invalid and be set aside.

6.  D2 has filed an acknowledgment of service indicating that she does not intent to contest the proceedings.  D2 is not legally represented and has not appeared at any of the hearings.

7.  D1 filed the D&C on 26 March 2018 seeking an order that the writ be dismissed and that a declaration be made that the 4^th Will is deemed to be duly executed and embodied the testamentary intentions of the Deceased under s 5(2) of the Wills Ordinance. 

8.  The 4 summonses issued by D1 were:

(i)  a summons issued on 19 April 2018, to (i) dismiss the writ of summons and to declare that the 4^th Will made by the Deceased be deemed to be duly executed and embodied the testamentary intentions of the Deceased under s 5(2) of the Wills Ordinance and (ii) to pronounce for the validity of the 4^th Will in solemn form and grant probate to D1 as sole executor (“1^st Summons”);

(ii)  a summons issued on 28 May 2018 in almost identical terms to the 1^st Summons (“2^nd Summons”);

(iii)  a summons issued on 29 May 2018 to dismiss the action for want of prosecution under rule 1(4) as P did not within the period fixed under paragraph (1) of Order 34 rule 2 set down the action for trial (“3^rd Summons”);

(iv)  a summons issued on 12 June 2018 in almost identical terms to the 3^rd Summons (“4^th Summons”).

9.  The 1^st Summons was fixed for a call over hearing for 30 minutes on 25 May 2018.  At that hearing, as the application was opposed, the summons was adjourned to a two hour hearing for argument and directions were given for filing of affirmations.

10.  Instead of proceeding to fix the 2 hour hearing as directed, 3 days later, D1 issued the 2^nd Summon seeking identical relief, followed by his 3^rd Summons and then his 4^th Summons.  The latter 3 summonses were all fixed at a call over hearing of 30 minutes on 25 June 2018.  When D1 was reminded of the directions given by this Court at the earlier hearing on 25 May 2018, he then sought leave to withdraw his 2^nd, 3^rd, and 4^th Summonses.  This Court granted leave and proceeded to make an order for costs against him, upon which D1 immediately indicated he no longer wanted to withdraw his 3 summonses.

11.  In light of the fact that D1 was legally unrepresented, the Court allowed him to change his mind.   Further directions were then given and this Court fixed a 2 hour hearing on 31 July 2018 for argument of all 4 summonses.  D1 was reminded to seek independent legal advice.

12.  Mr CK Wong appeared for P and D1 appeared in person at the hearing on 31 July 2018.  No written submissions were lodged by D1 and he indicated that he intended to make only oral submissions.

Discussion

13.  The present action is a probate action.  Order 76 rules 1(2) of the Rules of High Court (RHC) provides that in those rules under Order 76, “probate action” means an action for the grant of (i) probate of the will, or (ii) letters of administration of the estate of a deceased person, or (iii) for the revocation of such a grant, or (iv) for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business.  Rules 2 to 15 under Order 76 apply to “probation actions”. 

14.  As summarised in the “Editorial Introduction” in paragraph 76/0/2 of Volume 1 of the Hong Kong Civil Procedure (HKCP) 2018 Ed, “probate actions” proceed in accordance with the other rules in the RHC applicable to actions generally except in so far those rules may be modified by provisions in Order 76, and the modifications are briefly set out in paragraph 76/0/2. 

15.  It is not clear under which rule of RHC D1 issued the 4 summonses.   D1 had filed 4 affirmations, respectively in support of each of his 4 summonses, and in his affirmations.  D1’s complaints included the following:

(i)  no reply was filed by P to the D&C, pleadings have been closed and that P has failed to within one month of close of pleadings seek the necessary directions for the conduct of trial;

(ii)  P failed to complete, file and serve a Timetabling Questionnaire (Appendix A to Practice Direction 5.2) within 28 days after the close of pleadings;

(iii)  P had failed to take out a case management summons as requested;

(iv)  P had failed to proceed within three months of the action HCA 2728/2015 as ordered by Wilson J on 26 April 2017 for declarations regarding validity of the wills.

16.  At the call over hearing on 25 June 2018, upon this Court’s enquiry as to his reason for his applications, D1 informed the Court that he applied to dismiss P’s claim for want of prosecution.  As set out in D1’s 3^rd Summons (and 4^th Summons) and at the hearing, D1 was relying on Order 34 rule 2 of RHC.

17.  Order 34 rules 1 and 2 provide as follows:

“1. Application and interpretation (O 34, r 1)

(1) This Order applies to actions begun by writ and, accordingly, references in this Order to an action shall be construed as references to an action so begun.

2. Time for setting down action (O 34, r 2)

(1) Unless the Court has fixed a trial date or a period in which the trial is to take place under Order 25, rule 1A(2)(b) or (3)(b), every order made in an action which provides for trial before a judge shall, whether the trial is to be with or without a jury, fix a period within which the plaintiff is to set down the action for trial.

(2) Where the plaintiff does not, within the period fixed under paragraph (1), set the action down for trial, the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or may make such order as it thinks just.

(3) Every order made in an action which provides for trial before a judge (otherwise than in the commercial list or in any list which may be specified for the purposes of this paragraph by directions under rule 4) shall contain an estimate of the length of the trial and, shall, subject to any such directions, specify the list in which the action is to be put.”

18.  As set out above, Order 34 rule 2(2) only applies if the plaintiff does not within the period fixed under rule 2(1) set down the action for trial, and under Order 34 rule 2(1) the period it to be fixed by the Court.  So far, there has been not been any order made by any master or any court fixing any period within which P has to set the action down for trial.  Thus, in my view, Order 34 rule 2(2) is not applicable.

19.  D1 has in his affirmations complained that P had not filed a reply to the defence or a defence to the counterclaim within stipulated time.  

20.  The D&C was filed by D1 on 26 March 2018, and under Order 18 rule 3(4) of RHC, a reply to any defence must be served by the plaintiff before the expiration of 28 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 28 days after the service on him of the counterclaim to which it relates. 

21.  According to my reckoning, the 28 days expired on about 23 April 2018.  Prior to the expiration of 28 days from the D&C, D1 had already issued the 1^st Summons for dismissal.  Thus, at the time of the issue of the 1^st Summons, the time for P to file a reply and defence to counterclaim had not yet expired.  There was no ground for D1 at all to apply to dismiss the writ of summons for want of prosecution.

22.  It was not clear whether P was intending to file a reply or defence to counterclaim prior to the expiration of the 28 days.  In any event, so far, there has been no draft reply or defence to counterclaim exhibited in the opposing affirmations of P’s solicitor filed on P’s behalf, and there is no indication that P is intending to file one.

23.  Under Order 18 rule 20(1)(b) of RHC, if neither a reply nor a defence to counterclaim is served, at the expiration of 28 days after service of the defence, pleadings are deemed to be closed.

24.  D1 has filed his List of Documents and his witness statement on 30 April 2018.  There is no sufficient evidence that D1 had taken any steps on trying to consult with P or to communicate or agree with P on the directions forward, nor is there any evidence that D1 had requested P to issue a case management summons.   There was clearly no agreement as to directions under Practice Direction 5.2.  D1 complained that P had not filed a “Timetabling Questionnaire” under paragraph C of Practice Direction 5.2, but neither had D1 himself.

25.  In any event, as D1 has filed a counterclaim, he also has carriage of the action and he could have himself issued a summons for directions or a case management summons before the master.  Instead, D1 issued the 4 summonses before this Court applying for summary dismissal of the action.

26.  Under Order 18 rule 14(1), if there is no reply to a defence filed, there is an implied joinder of issue on that defence.  As provided under Order 18 rule 14(3), there can be no joinder of issue, implied or expressed on a statement of claim or counterclaim. 

27.  In the present case, although P has failed to file a defence to the counterclaim, Order 19 of RHC which provides for default of pleadings does not apply in relation to a probate action.  Instead, under Order 76 rule 10, if there is default in service of a pleading, the opposing party has two alternatives: (1) to apply for an order for trial (normally on affidavit evidence) or (2) to apply for an order that the action be discontinued or dismissed under Order 76 rule 11, and for a grant of probate or letters of administration to be made to the person entitled thereto.

28.  However, as stated in paragraph 76/11/4 of HKCP, except in revocation actions, the court will not generally order discontinuance or dismissal without also making an order for the grant of probate or letters of administration, and that the order made will lead to a grant in common form only. In his counterclaim, D1 is seeking a declaration that the validity of 4^th Will be pronounced in solemn form.

29.  In any event, as also stated in paragraph 76/8/1 of HKCP, a probate action being of the nature of an action in rem and the court’s function being inquisitorial, the court will, at the trial, make a positive finding as to which is the valid will or whether the deceased died intestate and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more (emphasis added).  

30.  It is further stated in paragraph 76/8/1 of HKCP, a defendant may serve a counterclaim and thus obtain carriage of the action even where the plaintiff delays in serving a statement of claim and that it would rarely be appropriate for a probate action to be dismissed for want of prosecution (emphasis added).

31.  As also stated in paragraph 76/6/1 of HKCP, the combined effect of rr6 and 10 under Order 76 is to require the plaintiff to satisfy the court (normally on affidavit evidence) that he is entitled to the relief claimed even though the action is not defended by reason of the defendant’s default. This would similarly apply to a defendant who has filed a counterclaim.  Thus, D1 will have to satisfy the trial judge that he is entitled to the declarations and orders as sought by him in his counterclaim.

32.  D1 has referred to HCA 2728/2015 in one of his supporting affirmations.  This was an action issued by P in the capacity of the Committee appointed by the Court under Part II of the Mental Health Ordinance, Cap 136 for the estate of the Deceased.  In that action, P was seeking on behalf of the Deceased similar declarations that the 3^rd Will and the 4^th Will are invalid, as in the present action.

33.  As set out in the decision of Wilson Chan J on 26 April 2017, as the Deceased had passed away in November 2016, pursuant to section 27(4) of the Mental Health Ordinance, Cap 136, the Committee of the Deceased’s estate was discharged on her death, but as pointed out by the Judge, this did not mean that the cause of action did not survive the death of the Deceased and Order 15 rule 7 of RHC permits any person in whom the cause of action vests to apply for a substitution order, and the Judge then allowed 3 months for a substitution order to be applied by P, failing which the action was to be struck out.

34.  Instead of applying for a substitution order under HCA 2728/2015, P was advised to issue the present probate action as a person interested in the Deceased’s estate.  As explained by Mr Wong, in HCA 2728/2015, P was not suing in his personal capacity, but only in a representative capacity as Committee for the Deceased.  Since there is a hotly contested issue as to which was the last will of the Deceased, no doubt there will be an issue as to whether the cause of action would vest in P in a representative capacity on behalf of the estate of the Deceased.  As P decided not to apply for a substitution order, HCA 2728/2015 was struck out 3 months after 26 April 2017.

35.  Thereafter, D1 had attempted to apply for probate of the 4^th Will on 3 November 2017 under HCAG017294/17.  On 6 November 2017, P entered a caveat under HCCA 5617/17, and a warning was issued by D1 from the Registry on 9 January 2018. P did not enter an appearance to the warning.  As the 1^st caveat ceased to have effect after the time of appearance had expired, a further caveat was filed by P on 26 January 2018 under HCCA 504/18.  Anyway, the present action was then commenced by P on 13 February 2018.

36.  HCA 2728/2015 never proceeded to trial nor had there been any determination of the validity of the 4^th Will, or the 3^rd Will. 

37.  Having considered the above, there was no abuse of process in P commencing the present probate action instead of applying for a substitution order under HCA 2728/2015 and continuing with HCA 2728/2015.  I do not see there was any valid ground for D1 to say that the present action of P’s claim should be dismissed because P was seeking the same relief as he was in HCA 2728/2015 which had been struck out.

38.  The present action was issued by P pursuant to Order 76 rule 2 of the Rules of the High Court (RHC), as he is interested in the Deceased’s estate, in his capacity as the sole executor and one of the beneficiaries under the 1^st Will and/or the sole executor under the 2^nd Will.

39.  It is quite clear that the main issue to be resolved by this Court at the trial of this action is the mental capacity of Deceased at the time when the 3^rd Will and/or the 4^th Will was executed by her.  It is the Plaintiff’s pleaded case in paragraph 19 of the SOC that the Deceased was not mentally fit to execute the two 2013 wills.

40.  P’s claim is against both D1 and D2.  As pointed out by Mr Wong, D2 is not contesting P’s claim and is thus not disputing that both the 3^rd Will and the 4^th Will are invalid and should be set aside.  

41.  Both Dr Wongs saw the Deceased on 21 July 2014 under the joint arrangement of P and D1, pursuant to an order made on 10 June 2014 by DHCJ Leung in proceedings instituted by P under Part II of the Mental Health Ordinance, Cap 136 (HCMH 83/2013).   

42.  Dr CK Wong’s report indicated that the Deceased’s mental incapacity should have lasted at least 5 years, probably even longer. Dr John Wong indicated that without the Deceased’s clinical case notes and collateral information from caregivers, it was not possible to estimate with certainty the duration of her then mental incapacity, and although it seemed that her present mental incapacity started anytime in recent 3 months, the course of illness was not uncommon for dementia, which usually has a downhill decline over a number of years.

43.  Thus, notwithstanding the Medical Form, Dr Ip’s certification and Dr Chen’s certification provided by D1, the mental state of the Deceased at the time of making the 3^rd Will and the 4^th Will is an issue which the trial judge will need to determined.  Further, as pleaded by D1 in D&C, there are serious disputes of facts which require determination at trial. 

44.  This Court is not in a position to resolve those serious disputes of facts on paper.  The trial judge will need to consider all the evidence, both factual evidence and expert evidence, at the trial.  The doctors will need to attend trial for cross examination, and so will the witnesses who attended the Deceased’s execution of the 3^rd Will and the 4^th Will to give evidence as to the circumstances under which those wills were executed by the Deceased.

Conclusion

45.  Having considered the above, I am of the view that D1 has not established sufficient grounds for the action or P’s claim to be dismissed, whether for want of prosecution or otherwise.  In any event, P has raised credible triable issues and the matter should go to trial.  I therefore dismiss D1’s 4 summonses.

46.  At the hearing, Mr Wong has undertaken to issue a case management summons within 14 days of the handing down of this decision, unless the action is dismissed.  This undertaking should be incorporated in the order.  I further note that no affidavits of testamentary scripts have been filed under Order 76 rule 5(1).  The filing of the affidavits of scripts should precede the service of pleadings.  As set out paragraph 76/5/1 of HKCP, and observed by Lam J, as he then was in Lam Ping v Zi Yan Lu (unrep March 21, 2010), this rule is frequently ignored.  There is a general power for the master to extend time for compliance with Order 76 rule 5 which is not limited by the fact that a defence has already been filed, or the fact that pleadings have closed.  P and D1 should make an application for extension of time to comply with Order 76 rule 5 (1).

47.  Lastly, as I have dismissed D1’s 4 summonses, costs should follow the event.  I therefore order D1 to pay P’s costs of and incidental to the 4 summonses.  Such costs should be summarily assessed and paid by D1 within 14 days of assessment.  P is to lodge statement of costs within 7 days, and D1 to lodge any list of objection within 7 days thereafter.