Chung Wai Chun Susanna v. Chung Pan Yuk

HCAP 22/2015

[2018] HKCFI 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2015

________________________

____________

____________

____________________

JUDGMENT

____________________

1.In this probate action, the Plaintiff seeks (i) a revocation of the Letters of Administration of the estate of Chung Ngar Nam (鍾雅南), also known as Chung Chor Nam ( 鍾楚南), deceased (“the Deceased”) issued by the court to the Defendant on 28 July 2003 in HCAG 207/2003 (“the Grant”), and (ii) probate in solemn form of the last will of the Deceased dated 4 December 1995 (“the Will”).

2.The Deceased was born in Hong Kong in 1907, and died domiciled in the United States of America on 26 March 1999.  He was a widower, and left the Plaintiff and the Defendant as his only surviving children.  The Plaintiff, who was the younger half-sister of the Defendant, was at all material times a resident in the United States of America, while the Defendant was a resident in Hong Kong.  The Deceased had another son, Chung Bun Tuen, who predeceased him on 24 March 1988.

3.Under the Will, the Deceased appointed the Plaintiff as the sole executrix and trustee, and devised and bequeathed (i) his interest in a property in the New Territories, namely, Lot No 2036 in Demarcation District No 449, to the Defendant and a grandson (being a son of Chung Bun Tuen) as tenants in common in equal shares, and (ii) his residuary estate to the Plaintiff.

4.The Plaintiff became aware of the existence of the Grant in 2014.  She negotiated with the Defendant in about May 2015 regarding the revocation of the Grant but no agreement could be reached.  The Plaintiff commenced the present action on 23 July 2015.

5.The Defendant executed a Consent to Revocation of Grant dated 1 December 2015 in respect of the Grant.  However, he is unwilling to make a supporting affirmation to explain, amongst other things, the failure to previously locate the Will at the time of his application for the Grant.  According to his solicitors, Paul Kwong & Company, this was because “he had discovered that the contents [of his supporting affirmation for the Grant] are not wholly true” and he did not wish to “self-incriminate by pointing out the errors stated in his earlier affirmation” (see Paul Kwong & Company’ letter to the court dated 12 January 2017).  I should point out that Paul Kwong & Company did not act for or advise the Defendant at the time of his application for the Grant.

6.On 25 January 2017, the court declined to enter judgment for the Plaintiff in this probate action by way of consent summons, and directed the Plaintiff to proceed with the action in the usual manner.  On 13 October 2017, the court further directed that the present action be set down for trial on affidavit evidence only.

7.The trial was fixed to be heard on 11 April 2018.  Prior to the hearing, the court, upon reading the affidavits filed by the Plaintiff, noted that they failed to prove the due execution of the Will. On 10 April 2018, the court drew to the attention of the Plaintiff’s legal representatives various authorities, including (i) Re Estate of Yau Wai Wah (No 1),HCAP 3/1998, 30 January 2003, paragraphs 121 to 123 per Deputy High Court Judge Lam (as he then was), and (ii) Re Estate of Yau Wai Wah (No 2),HCAP 3/1998, 23 July 2003, paragraphs 4 to 7, to the effect that although the authenticity of a will in a probate action might not be disputed, where a party sought probate of the will in solemn form, it was still necessary for him/her to adduce evidence to prove that the will was duly executed by the testator.  I should also mention that, in order support her claim for revocation of the Grant, it was necessary for the Plaintiff to prove the existence and validity of the Will.

8.At the trial on 11 April 2018, the Plaintiff appeared by counsel, and the Defendant was absent, his attendance having previously been excused by the court on 4 January 2018.  The aforesaid gap in the Plaintiff’s evidence was not remedied.  In the circumstances, the court granted leave to the Plaintiff to file an affidavit(s) to prove the due execution of the Will within 28 days of the hearing, and informed the Plaintiff’s counsel that the court would determine the matters (including the question of costs) after receipt of the affidavit(s) without the need for any further hearing if possible.

9.On 26 April 2018, the Plaintiff filed (i) an affirmation of Tsung Pui Keung, a solicitors’ clerk in the employ of S H Chan & Co and one of the attesting witnesses to the execution of the Will by the Deceased, to prove that it was duly executed by the Deceased, and (ii) the 2^nd affirmation of Ho Wing Kwong Sam, the Plaintiff’s current solicitor, to explain that the other attesting witness (namely, Chan Suk Hung, formerly of S H Chan & Co) could not be located despite the exercise of reasonable diligence.

10.On the basis of the existing materials, I am satisfied that the Will was the last will and testament of the Deceased duly executed by him, and that the Grant should not have been issued to the Defendant.  I am also satisfied that all potential beneficiaries of the Estate, including the 7 children of Chung Bun Tuen, have received notice of this action (some of them have consented to the revocation of the Grant while some have taken no action despite steps having been taken by the Plaintiff’s solicitors to give them notice of these proceedings).  Accordingly, I revoke the Grant, and pronounce in solemn form for the force and validity of the Will.

11.As for costs, I order the Defendant to pay the Plaintiff’s costs of this action up to the hearing on 11 April 2018, to be taxed if not agreed on an indemnity basis in view of the fact that, on the evidence before me, the Defendant applied for the Grant despite having knowledge of the existence of the Will.  I do not consider that the Plaintiff should be entitled to further costs incurred after the hearing on 11 April 2018 because the Plaintiff ought to have prepared and produced all relevant and necessary evidence in support of her action by the time of the trial.  Any costs incurred by the Plaintiff up to the hearing on 11 April 2018, to be assessed pursuant to Order 62, rule 31 of the Rules of the High Court, Cap 4A, which she cannot recover from the Defendant shall be paid out of the estate of the Deceased.

Mr Simon K C Lam, instructed by T C Foo & Co., for the Plaintiff

The Defendant, absent