Yip Shung Kin and Another v. Yip Wing Ching

HCAP 30/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 30 OF 2016

____________

____________

____________

______________

DECISION

______________

Introduction

1.Mr Yip Shung Kin (“Kin”) and Mr Yip Tin Yau, the Yip brothers, brought this probate action against their natural father Mr Yip Wing Ching (“Yip”) to propound the will of their late mother Madam Lau dated 8 July 2014 (“the Will”) in solemn form of law in view of a caveat entered by Yip.

2.By summons dated 14 February 2017, the Yip brothers apply for summary judgement against Yip. At the hearing, they applied to amend the summons to include an application to strike out the counterclaim of Yip. After hearing arguments, I allow their amendment application with no order as to costs on the basis that the counterclaim can have no independent existence and no further evidence has to be adduced for this late application thereby causing little prejudice to Yip.

3.There are thus two applications calling for my determination. I shall start with a summary of the uncontroversial facts by way of background.

4.The Yip brothers are the executors appointed under the Will. They are the sole beneficiaries under the Will whereas Yip is totally disinherited.

5.Madam Lau passed away on 15 August 2016. At the time of her demise, she was the lawful wife of Yip albeit the matrimonial proceedings commenced by Yip to dissolve the marriage were afoot.

6.Madam Lau and Yip started a family business in public transport services in about 1995. Their business is apparently a huge success and by 2014 its operation involves around 100 self-owned public buses. The business has been carried out by a corporate vehicle known as Yip’s International Holdings Limited (“YI Holdings”) holding a group of companies.

7.Prior to March 2014, Yip, Madam Lau and the Yip brothers were the shareholders and directors of YI Holdings. All four of them were also the shareholders and directors of Yip’s Enterprises Management Limited (“YE Management”) which holds a number of properties in Hong Kong.

8.In or around 2014, the relationship between Yip and Madam Lau deteriorated. Madam Lau caused three legal actions to be brought against Yip under HCA 1061 of 2014, HCA 1389 of 2014 and HCA 1563 of 2014 (collectively “the High Court Actions”). The former two actions were commenced by the subsidiaries of YI Holdings and the latter was instituted by Madam Lau personally. I need not go into any detail of the allegations raised in the High Court Actions for present purposes.

9.Madam Lau was diagnosed with colorectal cancer in late 2015.

10.Yip filed a divorce petition dated 17 February 2015 on the ground that Madam Lau behaved unreasonably. He nevertheless withdrew the petition and filed a new petition dated 13 May 2016 for divorce relying on the ground of two-year separation.

11.Madam Lau was assisted by Messrs. Anthony Siu & Co. (“ASC”), a firm of solicitors, in the High Court Actions and the matrimonial proceedings. Ms Leung who is a partner of ASC handled all those litigations with the assistance of Ms Chow, an assistant solicitor of ASC.

12.On the face of the Will, it was signed by Madam Lau and witnessed by Ms Leung and Ms Chow. Ms Leung also signed to confirm her interpretation of the contents of the Will to Madam Lau.

The case of the Yip brothers

13.The pleaded case of the Yip brothers is simple and straightforward. The Will was duly executed by Madam Lau witnessed by Ms Leung and Ms Chow. At that time, Madam Lau was of testamentary capacity.  She knew and approved of the contents of the Will. The three conditions for a will to be propounded in solemn form set out in Wang Din Shin v Nina Kung (2005) 8 HKCFAR 387 by Ribeiro PJ at §173 are therefore satisfied.

14.For due execution, the statutory formalities in section 5 of the Wills Ordinance, Cap. 30 have apparently been complied with. The affirmation evidence of Ms Leung and Ms Chow adequately proves that the written document was signed by Madam Lau in their presence and that they attested her signatures and signed the Will themselves.

15.As regards the testamentary capacity of Madam Lau, the affirmation evidence of Ms Leung and Ms Chow again is of assistance. According to them, Madam Lau was able to give clear instructions for the purpose of the High Court Actions both prior to and subsequent to the execution of the Will. Hence, there is no issue of her mental capacity at the material time.

16.According to Kin, Madam Lau was healthy in 2014 throughout and it was not until February 2016 that she ceased her active participation in the business of YI Holdings and YE Management. There is no contrary evidence. Her mental capacity at the material time should not be called into question.

17.Lastly, Ms Leung affirmed that in the course of the preparation of the High Court Actions, she advised Madam Lau to prepare a will if she did not want Yip to have a share in her estate. After some deliberation, Madam Lau herself gave instructions to Ms Leung about her intended dispositions of her assets and on that basis, Ms Leung prepared a draft of the Will for her review. The draft did not differ materially from the Will in its contents.

18.Ms Leung further affirmed that on 8 July 2014, in her office, after she had explained to Madam Lau the contents of the Will, Madam Lau confirmed her knowledge and approval of the contents of the Will. Thus, Madam Lau appended her signatures thereon.

Yip’s case

19.In his Defence prepared by his former lawyers, Yip advanced no positive case in opposition. There, he merely alleges that the Yip brothers and ASC were not forthcoming when he asked for the Will after Madam Lau passed away. Further he made an allegation of burglary on the part of Kin shortly before the death of Madam Lau. This allegation was investigated by the police, as evidenced by some police interview records made in October 2016. There are other allegations but my view is that all these are irrelevant to the validity of the Will executed a long time ago. They only underscore the rancourous relationship between the parties.

20.Yip also alleges that Madam Lau had on at least two occasions made the same representation to him that she would bequeath her entire estate onto him within 12 months before her death (“the Representation”).

21.To sum up, in his pleading, Yip merely puts the Yip brothers to proof that the Will was duly executed and Madam Lau knew and approved of the contents of the Will.

22.In his affirmation filed in opposition, Yip made a lengthy account of his disputes with Madam Lau in respect of the business of the two companies. Very little, however, was said about the validity of the Will. He merely made an un-particularised allegation that the contents of the Will were created under the duress of the Yip brothers. He did not explain how and when the Yip brothers coerced Madam Lau into making the Will. He repeated the Representation and stressed that he deeply believed Madam Lau. In view of the Representation, Yip believes that the contents of the Will are not truthful and could not reflect the intentions of Madam Lau. He asserts that Madam Lau very likely was influenced by the Yip brothers when making the Will.

Analysis

23.It is not in dispute that as the matter of law, summary judgement is available in probate actions: Re Yau Tung Hoi, Deceased, unreported, HCAP 9/2016, 10.3.2017 per Chow J. Once the Yip brothers can show a plausible and sustainable case, the burden is on Yip to show that there is a triable issue and his affirmation must condescend upon particulars. Mere vague and general allegations are of no avail.

24.On the other hand, this court cannot strike out his pleading unless it is plain and obvious that his defence and counterclaim is hopeless with no chance of succeeding.

25.It is remarkable that the primary case of the Yip brothers is not really challenged by Yip on his evidence. He does not raise any challenge to the propriety of the execution of the Will. Indeed, there is nothing that causes me any concern about the due execution of the Will. There is no reason why this court does not accept the evidence of Ms Leung and Ms Chow, which is not challenged by Yip. I have little hesitation in coming to the conclusion that the Will was duly executed.

26.Taking the whole surrounding circumstances under which Madam Lau executed the Will and the evidence of Ms Leung and Ms Chow into account, I am satisfied that Madam Lau had the testamentary capacity when she executed the Will. The following matters in addition to the evidence of Ms Leung and Ms Chow provide solid evidence of the soundness of her mind at the material time:

(1)   About a month after the execution of the Will, Madam Lau was able to commence HCA 1563/2014 against Yip and the Statement of Truth in the Statement of Claim dated 11 August 2014 was signed by her.

(2)   In HCA 1061/2014, a Mareva injunction was granted against Yip on 14 August 2014 as a result of an ex-parte application supported by Madam Lau’s affirmations respectively dated 11 August 2014 and 8 July 2014.

(3)   Yip has never raised any doubt about the mental capacity of Madam Lau in all the legal actions including the Mareva injunction still being in force.

(4)   Indeed, Yip’s own evidence is that after the cancer of Madam Lau was discovered, he took good care of her and gave her company. He has never suggested that Madam Lau suffered any mental impairment. He even truly believes and relies on her Representation.

(5)   Up to now, Yip has never alleged any problem with Madam Lau’s testamentary capacity.

27.That brings me to the last condition, namely, knowledge and approval of the contents of the Will. As noted by Ribeiro PJ in Nina Kung, at §206, it is well established that proof of due execution and testamentary capacity generally means that knowledge and approval would be rebuttably presumed without the need to adduce of the affirmative evidence thereof.

28.Of course, there is affirmative evidence that Ms Leung took instructions from Madam Lau personally about the contents of the Will and her explanation of the same to Madam Lau before Madam Lau appended her signatures on the Will acknowledging her knowledge and approval of its contents. This evidence is not disputed by Yip and I see no reason not to accept such evidence. In light of this evidence, the Yip brothers do not need to rely on any presumption at all.

29.Ms Sit, for the Yip brothers, fairly draws my attention to the second rule in Barry v Butlin (1838) 2 Moo PC 480. Ribeiro PJ in Nina Kung at §204 explained this second rule:

“the particular circumstance introduced in Barry v Butlin (1838) 2 Moo PC 480 involved the fact that “a party writes or prepares a Will, under which he takes a benefit”. The second rule states that such circumstance ought generally to excite the suspicion the court, so that knowledge and approval is no longer presumed. Instead, the court emails affirmative evidence which it subjects to a “vigilant and jealous” examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased.”

30.Ms Sit takes this court through the evidence relating to the preparation of the Will. At one stage, the wife of Kin, namely, Ms Clarence Lam, was involved. Kin is the beneficiary under the Will. Ms Sit accepts that the second rule may have application if Ms Lam was instrumental in obtaining the Will. However, the evidence is that she was not. Yip does not suggest otherwise.

31.In the first place, ASC had acted for Madam Lau in other matters before Madam Lau came up with the idea of making the Will in the wake of her discussion with Ms Leung. Neither Ms Lam nor Kin procured ASC to prepare the Will for Madam Lau.

32.As can be seen in the emails of Ms Lam, her role was confined to conveying certain information to ASC and receiving the draft Will from ASC on behalf of Madam Lau. She was present in the two meetings in which Madam Lau confirmed to Ms Leung her instructions relating to the Will. There is no other evidence of her involvement.

33.In the circumstances, I agree with Ms Sit that Ms Lam cannot be said to have played an instrumental role in the creation of the Will and the second rule in Barry v Butlin does not apply to the present case.

34.Even if it does, in light of the unchallenged evidence of Ms Leung and Ms Chow alone, which I have scrutinised, I fail to find any suspicious circumstances pointing to the lack of knowledge and approval of the contents of the Will on the part of Madam Lau. Given the undeniably acrimonious relationship between Madam Lau and Yip at the relevant time culminating in the High Court Actions, it is perfectly understandable that Madam Lau intended that Yip was to be completely disinherited under the Will.

35.Thus, even, for the purpose of these applications, accepting the allegation of Yip that in April 2016, Madam Lau and Yip had a reconciliation and Madam Lau made the Representation, which could hardly sit comfortably with the filing of the second divorce petition, there can be no doubt about the testamentary intention of Madam Lau as shown in the Will made two years prior to her death.

36.Yip raised a vague allegation of undue influence in his affirmation. Whilst his Defence contains no such plea, he made a bald assertion that the contents of the Will were produced under the duress of the Yip brothers. Then, as a concluding remark, he claimed that Madam Lau was very likely influenced by the Yip brothers when she made the Will, the contents of which were contrary to the Representation.

37.Where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence: Ribeiro PJ in Nina Kung, §177. 

38.Ms Sit helpfully refers this court to O.76 r.9(3) of the Rules of the High Court, which provides that no allegation of undue influence shall be made unless it is specifically pleaded. For the purpose of this applications, even brushing aside the indefensible deficiency of his pleading, the assertion of Yip can hardly begin to discharge the persuasive burden. It is nothing more than a conjecture on the part of Yip without any particulars at all. I can place no weight on this assertion.

Conclusion and order

39.For the reasons given, I am convinced that the Yip brothers have satisfied all the three conditions and propound the Will with overwhelming evidence. The challenge mounted by Yip is completely groundless and not supported by any credible evidence. There is no triable issue shown by Yip and his counterclaim is doomed to failure.

40.In the premises, I accede to the applications of the Yip brothers and I enter judgement against Yip and make an order for probate of the Will in solemn form of law. I order that his counterclaim be struck out as well.

41.I fail to find any suspicious circumstances which justify an investigation of the validity of the Will in light of my conclusion concerning the application of the second rule in Barry v Butlin. There is no suspicion to be dispelled by the Yip brothers. Yip has acted unreasonably in this matter and this litigation is wholly unnecessary.

42.Hence, in my view, the general rule of costs following the event should apply. I therefore make a costs order nisi that Yip do pay the Yip brothers their costs of this action including these applications, to be taxed if not agreed.

43.As explained to Yip during the hearing, this Decision is written in the English language by reason of the fact that the pleadings and most of the evidence are in English. If so required, Yip can contact my clerk for the arrangement of a court interpreter who would explain the contents of this Decision in punti to him.

44.Lastly, I thank Ms Sit for her helpful submissions.

Ms Eva Sit, instructed by Anthony Siu & Co. for the plaintiffs

The defendant acting in person