CHU YUET BING v. CHAN KWAI HUNG AND OTHERS

HCMP 2206/2021

[2025] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2206 OF 2021

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D E C I S I O N

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INTRODUCTION

1.  By an ex parte originating summons dated 29 December 2021 (“the OS”), the applicant Madam Chu Yuet Bing (朱月冰) (“the Applicant”), the current sole grantee of the Letters of Administration of the estate of her late husband Chan Yan Sing (秦蔭成), the deceased (“the Deceased”), sought to apply on an ex parte basis the following:

(a)  An Order that the Letters of Administration be revoked;

(b)  The new Grant of Probate of the Estate of the Deceased with Will annexed be granted to my daughters CHUN KWAI PING (秦桂萍) and CHAN KWAI HUNG (秦桂虹), the joint executrix named in the Will of the Deceased of such person as this Honourable Court may deem fit;

(c)  Copy of the Will be used in lieu of original Will; and

(d)  There be no order as to costs of this application.”

2.  The OS was amended pursuant to the order of Deputy High Court Judge Leung (as he then was) on 7 June 2023 in which he ordered the proceedings to be continued on an inter partes basis. Further, he ordered that the beneficiaries named in the alleged will of the Deceased dated 17 September 2002 and the potential beneficiaries of the estate be joined and served as the respondents.

3.  By an inter partes originating summons dated 29 December 2021 (“the Amended OS”), the Applicant has joined her 4 children as respondents in the present proceedings, viz, Chan Kwai Hung (秦桂虹) (“Kwai Hung”), Chan Ki Cheong (秦其昌) (“Ki Cheong”), Chan Kwai Ping (秦桂萍) (“Kwai Ping”); and Chan Sai Cheong (秦世昌) (“Sai Cheong”).

4.  Under the Amended OS, the Applicant sought the same order from the court as that contained in the OS.

BACKGROUND

5.  By the OS, the Applicant seeks to revoke the Grant of Letters of Administration No. HCAG005348/2021 issued to her on 20 April 2021 (“the Grant”).

6.  The Applicant has filed 3 affirmations respectively on 29 December 2021 (“AP’s 1^st”); 3 October 2022 (“AP’s 2^nd”); and 12 April 2023 (“AP’s 3^rd”) in support of this application and in answer to the requisitions raised by Master S.H. Lee and Master David Chan.

7.  The Deceased passed away on 18 December 2020 at the age of 87. At the time of his demise, the Deceased had the following surviving spouse and children:-

(a)  Chu Yuet Bing (lawful wife; aged 74, the Applicant in this case);

(b)  Kwai Ping (daughter; aged 46, the 3^rd respondent (“R3”) in this case);

(c)  Sai Cheong (son; aged 43, the 4^th respondent (“R4”) in this case);

(d)  Kwai Hung (daughter; aged 37, the 1^st respondent (“R1”) in this case); and

(e)  Ki Cheong (son; aged 30, the 2^nd respondent (“R2”) in this case).

8.  The Applicant applied for and obtained the Grant in the belief and on the basis that the Deceased had died intestate.

9.  When the Applicant applied for the Grant, it was reported that the Deceased had cash in his 2 bank accounts (with total sum of HK$25,378.72 (“the Cash”) and a landed property situated at 3^rd Floor, 172A, Cheung Sha Wan Road, Kowloon (“the Matrimonial Home”): (see F.5 of The Grant and the updated land title search at exhibit “CYB-17” of AP’s 3^rd). Since the Grant was issued, the Applicant had partly administered the estate of the Deceased, ie the Cash was transferred to the Applicant’s own bank account, whilst the interests of the Deceased in the Matrimonial Home have not been dealt with.

10.  At the time when she was applying for the Grant, and for a while after the Grant was issued, the Applicant was not aware of the existence of the Deceased’s will dated 17 September 2002 (“the Will”).

11.  The Will was prepared by Messrs Cheung, Fung & Hui (“CFH”), and witnessed by their solicitors Ms Hui Mei Fung (“Ms Hui”) and Mr Lee Kim Hung (“Mr Lee”).

12.  In the Will, the Deceased appointed his daughters Kwai Hung and Kwai Ping as the executrix and trustees of the Will (who are respectively R1 & R3 herein and hereinafter collectively referred to as “the Trustees”). Kwai Hung and Ki Cheong are named as the beneficiaries of the Cash.

13.  As to the Matrimonial Home, the arrangements are that:

(a)  Kwai Hung was allowed to reside there until she was married;

(b)  The Applicant and Ki Cheong could reside there so long as they are surviving;

(c)  upon Ki Cheong attaining the age of 25, the Trustees are to transfer the Matrimonial Home to him, upon the undertaking from Ki Cheong that he would allow the Applicant to continue to reside at the Matrimonial home as long as she is surviving;

(d)  notwithstanding (a) to (c) above, the Trustees are at liberty to sell the Matrimonial Home and use the proceeds of sale to purchase another residence, after which the above arrangements should continue to apply; and

(e)  in the event that Ki Cheong passed away before attaining the age of 25, the Matrimonial Home should be transferred to Kwai Hung.

14.  The Applicant deposed to the fact that the existence of the Will came to light shortly after the Grant was issued, when she and her daughter brought an envelope containing all title deeds of the Matrimonial Home to a firm of solicitors, Messrs Chan & Associates (“C&A”), with the intention of transferring the ownership of the Matrimonial Home. The Applicant recalled that the said envelope was given to her by the Deceased. As she believed that the envelope contained only the title deeds of the Matrimonial Home, she placed it into the safe deposit box, and had neither opened nor checked the contents inside the envelope before she went to C&A. And when a solicitor of C&A opened the envelope, a copy of the Will was found inside it among the title deeds. The Applicant said this was the first time that she had seen the Will and learnt about its existence.

15.  For these reasons, the Applicant took out the present proceedings for revocation of the Grant. She undertakes to return the monies already administered (ie the Cash) to the Trustees, if so required by the court. The original of the Grant has been lodged with the Probate Registry and placed inside the file of the court under that case.

DISCUSSION

16.  In this case, what seems to be a simple application is complicated by 2 matters.

17.  First, only Kwai Hung, Ki Cheong and Kwai Ping have given their written consents to this application: (see exhibit “CYB-8” of AP’s 1^st). The other son, Sai Cheong (R4) has refused to give his consent. The Applicant could only speculate that Sai Cheong’s refusal was due to his inharmonious relationship with the Deceased. She considered him to be unreasonable and uncooperative, and urged the court to disregard his stance in this application: (See §§26-27 of AP’s 1^st).

18.  Second, the original of the Will cannot be located. C&A had tried to obtain it from CFH, but was informed that the file concerning the Will had been destroyed: (see exhibit “CYB-5” of AP’s 1^st). C&A then turned to Mr Lee and Ms Hui for assistance but was equally unfruitful. Mr Lee replied that he was not in the position to provide a certified copy of the Will, whilst Ms Hui had given no reply at all: (see exhibit “CYB-6” of AP’s 1^st).

19.  Requisitions had been raised, including and especially on the 2 matters as referred to above, and answered by the Applicant by way of AP’s 2^nd and AP’s 3^rd:

Under AP’s 2^nd

(a)  The Applicant had inquired with Sai Cheong his reasons for not giving his consent to this application. Sai Cheong replied that it was his desire to have an equal share in the Deceased’s estate, including the share of the Matrimonial Home. The Applicant added that Sai Cheong did not have a good relationship with the family members and is uncooperative (see §4).

(b)  Since the Grant was issued, the Matrimonial Home was occupied by the Applicant, Sai Cheong and Ki Cheong (see §6).

(c)  The Applicant was unable to locate the original of the Will, be it at the Matrimonial Home, or the elderly home that the Deceased resided at before his passing. The Applicant believed that the Deceased must have brought the original copy of the Will with him to the Mainland, hence only leave a copy of the Will inside the envelope as a precautious measure. She elaborated that the Deceased used to live in the Conghua County of the Mainland, and he had rented rooms there between 2012 and 2014. He planned to settle in the Mainland. The Deceased was brought back to Hong Kong by Kwai Ping, after the PRC police found him to be homeless, without any money and identity documents, amid investigation of a report of trespass. The PRC police were of the view that the Deceased suffered from dementia, and asked Kwai Ping to bring him back to Hong Kong. At the time when Kwai Ping went to Shenzhen to fetch the Deceased, he had nothing on him. For these reasons, the Applicant considered that the original copy of the Will could have been lost or stolen from the Deceased together with his other belongings during his stay in the Mainland (see §§7-9).

(d)  For the same reasons, the Applicant was certain that the Deceased had not revoked or destroyed the original of the Will. Moreover, the Applicant opined that the Deceased, being a careful and rigid person, could have instructed a lawyer to make a new will should he wish to revoke the Will. He would also have put a copy of the new will inside the envelope (see § §10-11).

(e)  The Applicant recalled that it was sometime around August 2011 when the Deceased handed the envelope to her, after she rented the safe deposit box at the bank. When he did so, the Deceased only said to the Applicant that the envelope contained the title deeds of the Matrimonial Home. There was no mentioning of the copy of the Will being included therein (see §12).

(f)  As to why the Deceased did not tell her and their children that he had made the Will, the Applicant opined that he could have wanted to keep the Will a secret mainly to avoid conflicts with Sai Cheong. Later on, when the Deceased was brought back to Hong Kong in 2014, he was already suffering from dementia, thus not having the mental capacity and ability to inform his family about the existence of the Will (see §§13-14).

(g)  Regarding the time when the Deceased started to suffer from psychiatric disorder, the Applicant noted that his dementia could have started in or earlier than 2012. Her belief came from the conversation in July 2012 with the landlord of the Deceased in the Mainland, Madam Zheng Raohong (“Madam Zheng”), whom informed the Applicant about the Deceased’s peculiar conducts. After he was brought back to Hong Kong in 2014, the Deceased was placed under the care of the elderly home (see §§15-16). Discharge Summaries in 2019 and 2020 issued by Alice Ho Miu Ling Nethersole Hospital recorded that the Deceased suffered from, amongst other illness, dementia of Alzheimer’s type: (see exhibit “CYB-12”).

Under AP’s 3^rd

(h)  The Applicant had instructed Kwai Ping to seek help from the PRC police in locating the landlord(s) of the Deceased when he resided in Conghua County, in hope that inquiries could be made as to the whereabouts of his personal belongings, including the Will. The Applicant received no reply from the PRC police to Kwai Ping’s 2 letters dated 3 January 2023 and 2 February 2023: (see §§3-4 and exhibits “CYB-14” and “CYB-15”).

(i)  Seeing that their request for assistance from the PRC police was futile, the Applicant had on 11 March 2023 visited the 2 places in Conghua County where the Deceased had lived in, in hope of finding the landlord(s) and Madam Zheng, and most importantly in finding the original of the Will. She was unable to achieve any of her goals (see § §5-7 and exhibit “CYB-16”).

20.  By the order of Master Matthew Leung (“Master Leung”) dated 7 November 2023 (in Chinese), the Applicant was granted leave to amend the OS to include the beneficiaries and intended beneficiaries as respondents in the present proceedings and to file and serve the same on the respondents within 14 days thereof. Master Leung directed the order to be drawn up and served on the parties by his clerk.

21.  By an affirmation affirmed on 7 November 2023, the Applicant confirmed that she had served the Amended OS by post to the 4 respondents.

22.  By an affirmation dated 8 August 2024, the Applicant confirmed that the Amended OS has been served on all 4 respondents.

23.  The matter was heard before Deputy High Court Judge KC Chan (“DHCJ KC Chan”) on 21 October 2024. However, on that occasion, the Deceased and the Applicant’s 2 sons, namely Ki Cheong and Sai Cheong in this case were absent. Only Kwai Hung and Kwai Ping together with the Applicant appeared at the hearing.

24.  At the hearing, Kwai Hung and Kwai Ping confirmed with the court that the notice of appointment to hear the OS had been sent to Sai Cheong, the only person who allegedly disagreed with the application.

25.  DHCJ KC Chan was satisfied with the proof provided by Kwai Ping showing the notice of appointment to hear that OS had been sent to Sai Cheong (both the original and photocopy thereof).

26.  Upon the Applicant made an undertaking to the court, it has been ordered by DHCJ KC Chan that the Applicant should within 2 working days from the hearing to file a supplemental affirmation to exhibit the notice of appointment to hear the OS to Sai Cheong as proof of the service.

27.  The court also asked the Applicant to confirm if she would like to continue or terminate the case. The Applicant confirmed with the court that she would like to continue with the case and to execute the Will of her late husband.

28.  The matter was then adjourned for the Applicant to fix a date for the hearing before another judge with 2 hours reserved.

29.  The substantive argument was fixed to be heard before me on 12 February 2025 where only the Applicant, Kwai Hung and Kwai Ping turned up. Again, Ki Cheong and Sai Cheong did not appear.

30.  Having checked with the Applicant and her two daughters at the hearing, I was satisfied that both Ki Cheong and Sai Cheong had been properly served with the notice of hearing today but they have chosen not to attend the hearing and to contest the application. This is particularly pertinent in Sai Cheong’s case as he was the one who had been reported by the Applicant as being unhappy with the present application.

Powers of the Court to revoke a Grant

31.  It cannot be disputed that the court has powers to revoke a grant and to remove a personal representative. Section 33 of the Probate and Administrative Ordinance (Cap.10) (“the PAO”) confers such powers on the court:

33. Revocation of grants and removal of executors

(1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

…

(3) The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.

32.  In this case, I accept the Applicant’s evidence that when she applied for the Grant, she was not aware of the existence of the Will. I further accept her allegation that it was not until sometime later after she and her daughter had brought an envelope home together with the title deeds of the Matrimonial Home from the bank that they discovered that it was a letter from C&A containing the Will.

33.  Given the above, I am satisfied that the Grant ought not to have been granted in the first place as it clearly contained a fundamental error in that it was believed that the Deceased had died intestate when in fact he had through a firm of solicitors, namely C&A, prepared a will. In the Will, the Deceased had clearly expressed his wishes as to how his estate should be administered after his demise. I am further satisfied that the present copy of the Will found by the Applicant in the safe deposit box is a true copy of the last will and testament of the Deceased, the original of which could no longer be found. As the Will has clearly reflected the Deceased’s wishes of how he had wanted to dispose of his estate, including the Matrimonial Home, I consider that the Deceased’s wishes should be respected and the Grant should be revoked.

34.  In the aforesaid circumstances, I will make an order in terms of the Amended OS. I further order that there will be no order as to costs to the application.