Vivian chih’s sharing of probate case

HCAP 4/2020

 [2021] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2019

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IN THE ESTATE OF HAR WAH CHOO (夏華初), late of Flat B, 8th Floor, No. 83 Broadway, Mei Foo Sun Chuen, Kowloon, Hong Kong, deceased (“the Deceased”)

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BETWEEN

LAU PO SHEUNG (劉寶嫦)   and	Plaintiff
LO YUEN CHING CINDY (盧婉清)	Defendant

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Before: Mr Recorder Eugene Fung SC in Chambers (Open to Public)

Date of Hearing: 10 March 2021

Date of Judgment: 24 March 2021

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J U D G M E N T

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1. INTRODUCTION
2.   In this action, the plaintiff seeks to revoke the probate of the will of the Deceased dated 29 April 2015 (“the 2015 Will”) on the ground that the 2015 Will was itself revoked by a later will of the Deceased made on 10 February 2018 (“the 2018 Will”).  The plaintiff is the widow of the Deceased and was named as the sole executrix of the 2018 Will.  This is the plaintiff’s summary judgment application to revoke the 2015 Will and for other ancillary orders pursuant to RHC Order 14.  
3. THE BACKGROUND FACTS
4. The Deceased passed away on 10 November 2019.  The plaintiff and the Deceased were married in 2014.  The Deceased had no children and the defendant is the Deceased’s god-daughter.
5. By a will dated 22 August 2013 (“the 2013 Will”), the Deceased:
6. revoked all former wills, codicils and other testamentary dispositions previously made;
7. appointed the defendant to be his executrix and trustee of the will;
8. gave, devised and bequeathed all of his real and personal properties to the defendant upon trust to sell, call in, and convert the same into money and after payment of his debts, funeral and testamentary and administration expenses and taxes, to hold the net proceeds upon trust for (a) the defendant all of the residuary estate if she survived the Deceased by 28 days; and (b) the defendant’s children in equal shares all of the residuary estate if the defendant did not survive the Deceased by 28 days.

• The Deceased made a further will on 29 April 2015 (“the 2015 Will”) containing all the terms of the 2013 Will.  In addition, the Deceased in the 2015 Will made a declaration that he had already given and disposed certain assets to the plaintiff during their marriage, and an express direction that none of the property out of his estate should be paid or given to the plaintiff whether or not they were still married.  The 2015 Will was made when the plaintiff and the Deceased had already been married and the plaintiff does not appear to dispute the validity of the 2015 Will.
• Under 2018 Will (executed on 10 February 2018), the Deceased:
• revoked all wills and testamentary dispositions previously made;
• appointed the plaintiff to be his executrix and trustee of the 2018 Will;
• gave, devised and bequeathed all of his real and personal properties to the plaintiff absolutely subject to the payment of his debts, funeral and testamentary expenses.

• On 9 January 2020, probate of the 2015 Will was granted to the defendant. 
• On 3 March 2020, the plaintiff issued the writ herein to revoke the probate of the 2015 Will.  The plaintiff’s Statement of Claim was filed on 7 May 2020.
• On 26 June 2020, the defendant filed her Defence alleging, amongst other things, that the 2018 Will is invalid because the Deceased lacked testamentary capacity when it was executed and did not know and approve the contents thereof.
• On 11 November 2020, the plaintiff issued an application pursuant to RHC Order 14 for final judgment for the remedies sought in the Statement of Claim.  By consent, the application was ordered to be determined substantively by a judge in chambers.
• TRIABLE ISSUES?
• There is no dispute between the parties that the Court in an appropriate case may give summary judgment to propound a will in solemn form: Re Lau Siu Wah (deceased) [2005] 1 HKC 364 at §§13-19 (DHCJ J Poon); Re Estate of Yau Tung Hoi (unreported, HCAP 9/2016, 10 March 2017) §16 (Chow J).
• In his submission, Mr Wilfred Tsui on behalf of the defendant puts forward the following contentions to resist the present summary judgment application.
• The plaintiff has not pleaded that the Deceased had the requisite testamentary capacity and the mental capacity to know and approve the contents of the 2018 Will.
• There is an inconsistency between the Statement of Claim and the plaintiff’s affirmation evidence in relation to the place where the 2018 Will was executed.
• There is a triable issue as to whether the Deceased had testamentary capacity at the time when the 2018 Will was executed.
• There is a triable issue as to whether the Deceased knew and approved the contents of the 2018 Will.

C1.    Failure to Plead Testamentary Capacity and Knowledge and Approval of Contents of 2018 Will

1. The plaintiff’s primary claim against the defendant is for the revocation of the probate of the 2015 Will.  In my view, the mere absence of references in the Statement of Claim to (1) the Deceased having testamentary capacity at the time of the execution of the 2018 Will and (2) the Deceased knew and approved the contents of the 2018 Will, is not fatal to the present summary judgment given that such matters have been dealt with in the plaintiff’s affirmation evidence.

C2.    Alleged Discrepancy between Statement of Claim and Affirmation Evidence

1. In her Statement of Claim, the plaintiff pleads that the Deceased made the 2018 Will “at a firm of solicitors in practice in Hong Kong”.  In his first affirmation, Mr Lee Ning Kei (“Mr Lee”), the sole proprietor of Messrs N.K. Lee & Co, stated that the 2018 Will was prepared by him but was executed by the Deceased at a doctor’s clinic.  In his second affirmation, Mr Lee stated it was correct for the plaintiff’s pleading to say that the 2018 Will was made at his firm because the 2018 Will was prepared by him.
2. Mr Tsui submits that there is a discrepancy between the plaintiff’s pleading and Mr Lee’s affirmation evidence, and that the issue of where the 2018 Will was executed should be tested at the trial.  It is further submitted that the mere fact that there is such a discrepancy is enough for the Court to dismiss the summary application.  I am not persuaded that this issue alone is sufficient to give rise to a relevant triable issue.  As to be seen in the next section, the Court will consider all the relevant evidence available and then come to a view as to whether or not the person propounding the will has discharged the burden of establishing the requisite elements.

C3.    Whether the Deceased had Testamentary Capacity when the 2018 Will was Executed and Knew and Approved the Contents of the Will

1. By seeking to revoke the probate of the 2015 Will, the plaintiff is effectively seeking to propound the 2018 Will. 
2. The general principles for the propounding of a will (in the absence of any allegation that the will was procured by fraud or undue influence) may be summarised as follows:
3. A person who propounds a will has the legal or persuasive burden of proving on balance of probabilities that:

(a)       there was due execution of the will;

(b)       the testator was of testamentary capacity; and

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

See Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §§171-173 (Ribeiro PJ).

• If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.  See Nina Kung (above) at §176 (Ribeiro PJ).

C3a.  Testamentary capacity

1. In relation to testamentary capacity:
2. The court should ask three questions to determine whether a person had testamentary capacity to make a will:

(a)       Whether the deceased was capable of understanding the nature of the act of making the will and its effects?

(b)       Whether the deceased was capable of understanding the extent of the property of which he was disposing?

(c)       Whether the deceased was able to comprehend and appreciate the claims to which he ought to give effect?

See Banks v Goodfellow (1870) LR 5 QB 549 at 565 (Cockburn CJ) & Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at §45 (Kwan JA).

• The question of testamentary capacity is a practical question to be assessed holistically by reference to the whole of the evidence (and not confining to the medical evidence), and judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at §19 (Lam VP).

1. One of the matters that the plaintiff needs to prove to propound the 2018 Will is to show that the Deceased was able to comprehend and appreciate the claims to which he ought to give effect at the time when the will was executed.  The plaintiff needs to at least show that the Deceased was able to recall the family members whom he considered would be fitting objects of his estate, and had an understanding to comprehend their respective relationship to himself. 
2. The plaintiff relies on two matters to contend that this condition is satisfied, namely (1) Mr Lee’s affirmative evidence that the Deceased was clear that the plaintiff was “his ally as opposed to the other camps he was in litigation” and (2) a doctor’s medical certificate dated 2 October 2018 stating that the Deceased was “able to mention the person who would be entitled to inherit his assets” and “expressed the wish to leave his assets to his wife”.
3. There is evidence that the Deceased was involved in litigation with the defendant between 2015 and 2017 in relation to the possession of some property in Kwai Chung, and that the court proceedings came to an end in June 2017 when the defendant consented to return the property to the Deceased.  Mr Lee’s evidence is that the Deceased knew that the plaintiff was his ally in the litigation.  However, I do not believe this goes far enough to show that the Deceased was able to comprehend and appreciate the claims to which he ought to give effect at the time when the 2018 Will was executed.  This is particularly so when (1) the Deceased in his 2015 Will gave his residuary estate to the defendant (and to the defendant’s children if the defendant did not survive the Deceased by 28 days), and (2) according to the defendant’s evidence, it is alleged that the Deceased transferred to the defendant some properties in Kwai Chung after the making of the 2015 Will, that the Deceased was forced by the defendant to institute the 2015 proceedings, and that the defendant only conceded the 2015 litigation because she did not want to cause any difficulty to the Deceased as he needed the plaintiff’s care at the time.
4. As far as the doctor’s certificate dated 2 October 2018 is concerned, it refers to an examination of the Deceased carried out on 27 September 2018 (ie over 7 months after the Deceased executed the 2018 Will).  There is nothing before the Court to suggest that the Deceased’s understanding of certain matters on 27 September 2018 was the same as his understanding at the time when the 2018 Will was executed on 10 February 2018.
5. For these reasons, it seems to me that there is a triable issue on whether the Deceased had testamentary capacity at the time when the 2018 Will was executed.

C3b.  Knowledge and approval of contents of 2018 Will

• In Re Estate of Lau Heung (above), Lam VP (giving the judgment of the Court) at §76 referred to the trial judge’s approach of not acting on the presumption that knowledge and approval would be established upon proof of due execution and testamentary capacity, but instead looking for affirmative evidence that the deceased knew and approved the contents of the will, adopting the approach that the court would be vigilant and jealous in examining the evidence in this respect.  In the end, the Court of Appeal at §84 considered that the trial judge did not err in finding knowledge and approval in the way he did.
• In this application, in assessing whether the Deceased knew and approved the contents of the 2018 Will, I will adopt the same approach as that mentioned by Lam VP in §76 of Re Estate of Lau Heung (above).
• In the 2018 Will, the Deceased revoked all of his wills and testamentary dispositions previously made by him.  This would include the 2015 Will that the Deceased made in favour of the defendant.  In Mr Lee’s affirmation evidence, he said that he asked the Deceased at the doctor’s clinic just before the execution of the 2018 Will whether any previous will had been made, and the Deceased answered him in the negative.  The plaintiff has given similar affirmation evidence.  Further, the defendant has given affirmation evidence to say that the Deceased’s memory and cognitive ability were already fading in 2016 (when he was 93 years of age), which is disputed by the plaintiff.
• In order for the Deceased to know and approve the contents of the 2018 Will, it seems to me that he ought to have understood, amongst other things, what its effect would be: Gill v Woodall [2011] Ch 380 at §71 (Lloyd LJ); Re Estate of Lau Heung (above) at §§84-85 (Lam VP).  One of the effects of the 2018 Will is the revocation of the 2015 Will.  Given that the Deceased told Mr Lee that he had no prior will before he executed the 2018 Will, it seems to me that there is a triable issue as to whether the Deceased truly understood the contents and effect of the 2018 Will.  This is also relevant to the question of whether the Deceased was capable of understanding the nature of the act of making the will and its effects, which goes to the Deceased’s testamentary capacity.
• Further, as mentioned in paragraph 4 above, the Deceased declared in 2015 that he had already given and disposed certain assets to the plaintiff during their marriage and expressly directed that none of the property out of his estate should be paid or given to the plaintiff whether or not they were still married.  The contents of the 2018 Will are inconsistent with the Deceased’s own declaration and direction made in 2015.  There is no evidence before the Court in relation to this apparent inconsistency.  It seems to me that this apparent inconsistency raises a further triable issue as to whether the Deceased understood and approved the 2018 Will.
• Accordingly, I consider that there are triable issues on whether the Deceased knew and approved the contents of the 2018 Will.
• DISPOSITION
• For the above reasons, I do not consider that this is an appropriate case for the summary judgment.  Given that the plaintiff had received the Defence before issuing her Order 14 summons and knew that the defendant would dispute the validity of the 2018 Will on the grounds that the Deceased lacked the relevant testamentary capacity and the relevant knowledge/approval of its contents at the time when the 2018 Will was executed, the plaintiff’s summary judgment application should in my view be dismissed.
• I also make an order nisi that the costs of and occasioned by the plaintiff’s summons dated 11 November 2020 are to be paid forthwith by the plaintiff to the defendant, to be taxed if not agreed, pursuant to Order 14 rule 7(1). 

 (Eugene Fung SC)

  Recorder of the High Court

Mr Edward M.H. Chan, instructed by Messrs Raymond Chan, Solicitors, for the plaintiff

Mr Wilfred Tsui, instructed by Messrs Tang, Leung, Li & Tsang, for the defendant