CHAN MEI FAT v. CHOI LAI SHEUNG

HCMP 847/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 847 OF 2005

____________

____________

____________

_____________

D E C I S I O N

_____________

1.  Madam Choi Lai Ngor, hereafter called the “Deceased” died on 6 October 2004.  The Plaintiff is the husband of the Deceased.  The Defendant is a sister of the Deceased.

2.  After the death of the Deceased, the Defendant made known to the Plaintiff that the Deceased had left her last will dated 16 May 2004 (the “Will”) appointing her as the executor.  It is also the Defendant’s case that the Will left a number of specific legacies to a number of named individuals as beneficiaries.  Indeed it is also the Defendant’s case that the Deceased had made 2 specific gifts of properties to the Plaintiff. 

3.  Although at one stage, the Plaintiff through his solicitors alleged that he was never shown the Deceased’s Will, it is now common ground that on or about 21 October 2004 the Plaintiff attended the office of the Defendant’s solicitors and there he was shown by the Defendant’s solicitors a document which purported to be a will of the Deceased.  What is now in dispute is whether the document shown was in fact the document, which the Defendant now says is the Will of the Deceased or some other testamentary document.   It is also not very clear whether the Plaintiff had in fact studied the document shown to him in details or he merely had a glance over the document. 

4.  In essence, by this application, the Plaintiff asks the Court to order the Defendant to produce and bring into court the Will and other testamentary documents of the Deceased, and also to supply the Plaintiff a copy of such documents.

5.  The stance of the Defendant is that the Defendant is not objecting to the production and filing of the will and other testamentary documents but the Defendant would resist any order to supply the Plaintiff with any copy of the documents.

6.  It is not in dispute that on 6 January 2006, the Defendant’s solicitors had sent to the Plaintiff’s solicitor a copy of the Will of the Deceased.  However the copy sent had been edited in that various parts of the document were blacked out. 

7.  There is no dispute that under section 7(1) of the Probate Administration Ordinance there is jurisdiction in this court to order the production and filing of the testamentary documents and also to direct that copies of the documents be supplied to the person who asks for such order.

8.  The Plaintiff being the husband of the Deceased obviously has an interest in the estate of the Deceased on intestacy.  Even if the Deceased should leave a will, if there is no valid disposition of the residuary estate under the will, he would also have an interest in the residuary estate.  Thus it is beyond argument that the Plaintiff would have sufficient interest to justify him to apply to the Court for inspection and taking copies of any document purporting to be the will of his wife.  It is plain and obvious that such inspection or examination would enable him to decide whether he should cite the Defendant to take the grant, or to apply for letters of administration himself.   Even without alleging forgeries or any other specific ground to challenge the validity of the Will, he is entitled to put the person propounding the Will to prove the Will in solemn form.   If the Defendant should commence a probate action to prove the Will in solemn form, then under Order 76 rule 5, she is obliged to file an affidavit of testamentary scripts disclosing all testamentary scripts within her knowledge also to lodge those testamentary in her possession or control in Court, and upon filing his own affidavit of testamentary script the Plaintiff would be entitled to inspect the testamentary scripts lodged by the Defendant.

9.  The Defendant resists the application for supplying the Plaintiff copies of the testamentary documents that she is prepared to lodge with the court on 3 main grounds:

10.  First, it is suggested that if the Plaintiff is shown the whole of the Will, he would have known about the assets of the Deceased and some how this would either encourage him to forge a will or would improve his chance of succeeding in forging a will.  In this respect, the Defendant said that the Plaintiff had been very unreasonable in his previous dealings with the Defendant and also members of the Deceased’s maiden family.  The Defendant also suggested that the Plaintiff’s behaviour was bad and he had been guilty of conduct of criminal damage to property.  I have taken all these allegations into account.  However forgery of a will is a very serious matter.  Having taken all allegations into account I must say that I am not persuaded that there is enough concrete material for me to conclude that if the copy will is shown to the Plaintiff, somehow that would either encourage him to forge a will or would improve his chance in succeeding in any forgery.  In any event, there is no need to set out the properties of the estate in a will and hence knowing the details of the property of the estate does not appear to have any causal relationship with forgery of a will.  In any event, this concern could well be addressed by requiring the Plaintiff to disclose what testamentary documents that he has knowledge of, as a condition for his being given a copy of the Will.

11.  Secondly it is said that it is the wish of the Deceased that her Will and her affairs should be kept confidential from the Plaintiff.  However when the evidence is examined, all that the Defendant could say is that the Deceased had told the attesting witnesses that they must keep the whole matter relating to the Will in the strictest confidence and should not let the Plaintiff know about it.  This is far from saying that the Deceased had indicated any wish that after her death it was her wish that the plaintiff should not know anything about her Will.

12.  The last point taken was that the covered parts of the copy Will would show the names of the legatees of the specific gifts and there is a duty on the part of the Defendant as executor to keep their identity and entitlement confidential as it is not the wish of these legatees to let the Plaintiff know anything about their legacies.  I am unable to accept this argument as a good enough ground to resist the order sought.  First, the Will, if proved will be a public document.  It will be annexed to the Probate and would be available for public inspection.  Furthermore, the legatees are not beneficiaries unless and until the Will is proved and on one view, they are not beneficiaries until the estate is administered (see Livingston v. IRC).

13.  In the circumstances, I am of the view that the Plaintiff is in principle entitled to inspect and have copies of the testamentary documents lodged in court by the Defendant.  However even in a probate action, a party is not entitled to inspect the affidavit of testamentary script filed or any testamentary script lodged with the Court by another party until after he has filed his own affidavit of testamentary script.  Although in the present case, neither party has yet commenced any probate action, I do not see how the Plaintiff should be put in a better position than had a probate action been commenced by the Defendant.

14.  The Plaintiff through his counsel is prepared to undertake to file an affidavit of testamentary script in compliance with the requirement of Order 76 rule 5 as a condition to his being entitled to inspect or to have copies of the testamentary scripts lodged by the Defendant.  Similarly the Defendant through her counsel has told me that she is also prepared to file an affidavit of testamentary script in compliance with the requirements of Order 76 rule 5 and lodge the testamentary scripts with court.

15.  Accordingly, I would order that (1) the Defendant shall file an affidavit or affirmation which shall in all respects comply with the requirements of Order 76 rule 5(1) with 14 days from the date hereof and lodge the testamentary scripts referred therein which are in her possession or control within 14 days from the filing of the affirmation.  (2) Upon the Defendant filing an affidavit or affirmation which shall in all respect comply with the requirements of Order 76 rule 5(1) and lodging the testamentary scripts referred therein which are in his possession or control, and serving a copy of the affidavit or affirmation together with copies of the testamentary scripts (if any) lodged on the Plaintiff’s solicitors, the Plaintiff shall forthwith supply the Defendant clean copies of the testamentary scripts lodged by the Plaintiff.

16.  As to the cost of this application, the parties are agreed that the cost in relation to question 1 of the originating summons which resulted in the first paragraph of my order should be that there shall be no order as to cost save and except that the cost between 9 January 2006 and 20 February 2006 is to be cost to the Plaintiff.  The Defendant conceded that cost of the 2^nd question should follow the event.  Accordingly I will make an order that the cost of the 2^nd question in the originating summons, which resulted in paragraph 2 of my order, should be to the Defendant.  However for the avoidance of doubt, I decline the Plaintiff’s application for the cost to be taxed on indemnity basis.  All costs ordered herein are to be taxed on party and party basis.