Zqa and Others v. Scc (Sued As Executor and Beneficiary of the Estate of the Deceased) and Others

FCMP 63 / 2017

[2018] HKFC 22

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 63 OF 2017

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BETWEEN

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D E C I S I O N

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Foreward

1.These proceedings are brought by the 1^st, 2^nd and 3^rd Applicants (“the Applicants”) claiming maintenance pursuant to Section 4 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481 (“IO”) against the Estate of the late SYC in respect of which the 1^st and 2^nd Respondents were being sued as Executors along with other beneficiaries under the Will.

2.On 28 August 2017, the 4^th Respondent on her behalf and also on behalf of the 5^th and 6^th Respondents, filed an Affirmation in Opposition to the Applicants’ claim. 

3.On 6 October 2017, the Applicants took out a Summons seeking leave to administer Interrogatories, inter alia, for examination of the 4^th, 5^th and 6^th Respondents.

4.By an Order by consent dated 16 November 2017, leave was granted to the Applicants to administer Interrogatories, inter alia, for examination of the 1^st and 2^nd Respondents; and also on the 4^th, 5^th and 6^th Respondents.  Accordingly, Interrogatories were filed and served on 23 November 2017.

5.On 20 December 2017, leave was granted for amendment of the Interrogatories upon the 4^th, 5^th and 6^th Respondents which now read as follows :-

“(1)  In relation to the allegation in paragraph 46 of the Affirmation of THHD filed on 25 August 2017 that the 4^th, 5^th and 6^th Respondents were the Deceased’s dependants and were “wholly maintained” by him, what is the total amount of contribution in money or money’s worth made by the Deceased towards the needs of the 4^th, 5^th and 6^th Respondents in the 12 months before the death of the Deceased on 29 March 2016 ?

(2)  In relation to the reference to the 4^th, 5^th and 6^th Respondents’ “interests under the Will”, what is the total amount of provision (whether the same consists of money, securities or other properties) that the Deceased had left by will to the 4^th, 5^th and 6^th Respondents according to the most recent valuation ?

(3)  What are the financial resources the 4^th, 5^th and 6^th Respondents have or are likely to have in the foreseeable future ? In particular, in relation to the allegation in paragraph 48 of the Affirmation of THHD filed on 25 August 2017, what are the financial resources the 4^th respondent has or is likely to have by running the online shop selling teenager’s clothing ?”

6.Paragraph (3) of the Amended Interrogatories was answered by THHD in her Second Affirmation filed on 18 December 2017.

7.Paragraphs (1) and (2) had not been answered and thus became the subject matter of this hearing.

The statutory provisions and applicable legal principles

8.First of all, the matters to which the Court is to have regard to when exercising powers to make maintenance orders under the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481 (“Cap.481”) are contained in Section 5(1) of the Ordinance which provides, inter alia :-

“(1) Where an application is made for an order under section 4, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters –

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

………

………

(7) In considering the matters to which the court is required to have   regard under this section, the court shall take into account the facts as known to the court at the date of the hearing.”

9.The relevant legal principles on Interrogatories have been succinctly set forth by Hon Cheung J (as he then was) in the case of Lee Nui Foon v. Ocean Park Corp (No 2) [1995] 2 HKC 395 which can be summarized follows :-

-  The interrogatories must relate to ‘a matter in question’ between the parties and must be ‘necessary’ either for disposing fairly of the cause or matter or for saving costs;

-  The interrogatories must not be fishing, oppressive, prolix or imprecise;

-  The interrogatories must not be questions which went to the evidence the opposing party intended to adduce;

-  The interrogatories must not be questions which required an answer which was a matter of opinion or for an expert;

-  The interrogatories must not be questions which went to the facts which would assist in establishing the opposing party as opposed to the case of the party seeking to interrogate;

-  The interrogatories must not be effectively asking for documents of discovery;

-  If the interrogatories did not comply with the requirement of the rules under Order 26, they might not be administered. Even if they did comply with the rules, nevertheless the court retained an overriding discretion as to whether or not to allow them to be administered.

The contention of the 4^th, 5^th and 6^th Respondents

10.Mr. Ng for the 4^th, 5^th and 6^th Respondents in his Skeleton Submissions first referred me to the provisions under Section 5(1) of Cap.481.

11.It was then submitted that Paragraph (1) of the Amended Interrogatories fell outside the scope of matters under Section 5(1) and was therefore irrelevant. 

12.As to Paragraph (2) of the Amended Interrogatories, though conceivably that they are covered by Section 5(1)(e), nonetheless they would be best answered by the Executors, namely, the 1^st and 2^nd Respondent.  As a matter of fact, the 1^st and 2^nd Respondents had already been so interrogated but failed to provide any answers and were in breach of this Court’s Order dated 16 November 2017.

The Court’s Views

13.First of all, it is bizarre that a period of 12 months was inserted in Paragraph (1) of the Amended Interrogatories.  Miss Yu, Counsel for the Applicants, was unable to provide any legitimate reasons for it.  Such Interrogatory aimed at ascertaining the monetary sum or money’s worth contribution made by the Deceased to maintain the 4^th, 5^th and 6^th Respondents.  I failed to see how the answer to such Interrogatory, if any, could relate to any matter in question between the parties (my emphasis) except for using as reference or comparison to the level of maintenance that might be required by the Applicants.  This is evident from Applicants’ Counsel Miss Yu’s written submissions at paragraph 10 where she said :

“10. Paragraphs (1) and (2) of the Amended Interrogatories against the 4^th, 5^th and 6^th Respondents are obviously not related to their credit but to the issue in question, namely, whether and if yes how much financial provision should be given to the Applicants from the Deceased’s estate (my emphasis).”

14.It is all possible that the financial provisions made to the 4^th, 5^th and 6^th Respondents could be more or could be less than the financial needs of the Applicants.  Each case of dependency must be assessed and considered separately and subjectively by reference to those factors under Section 5(1) of Cap.481.  There is no room for making comparative assessment of financial needs between different dependants or families.  Having said, I am of the view that Paragraph (1) of the Amended Interrogatories is, when also taking into account the period of 12 months being inserted, more probable than not fishing expedition.  It does not relate to any matter in question nor necessary for disposing fairly the cause or matter or for saving costs.

15.As to Paragraph (2) of the Amended Interrogatories, it required the 4^th, 5^th and 6^th Respondents to state the amount of provisions, whether it consists of money, securities or other properties, left by the Deceased under his Will.  The argument raised against it was that such Interrogatory should be better answered by the Executors who administered the Deceased’s estate rather than the beneficiaries who shared in the estate.  I agree.

16.The fact that the Executors, namely, 1^st and 2^nd Respondents had not put in evidence or replied to such Interrogatory does not afford a basis for the Applicants then to get the answer from the 4^th, 5^th and 6^th Respondents.  How would the lack of evidence or answers from the Executors (of whom already in breach of Court Order) oblige the beneficiaries (which include the 4^th, 5^th and 6^th Respondents) to provide answers required by the Applicants ?  Moreover, such answers might also be used as evidence by the 4^th, 5^th and 6^th Respondents to oppose claims made against the Deceased’s estate ? (see Lee Nui Foon case, supra).  This would not be a situation that the answers are necessary to disposing fairly the cause or matter or for saving costs.  With respect, it is plainly wrong for Counsel Miss Yu to say at paragraph 11 of her written submissions :-

“11. Particularly because the executors have not yet put in evidence, allowing these interrogatories against the 4^th, 5^th and 6^th Respondents is necessary both for disposing fairly of the cause or matter or for saving costs……….”

17.For all the above reasons, I find against the Applicants in that both Paragraphs (1) and (2) of the Amended Interrogatories dated 23 November 2017 served upon the 4^th, 5^th and 6^th Respondents be dismissed with costs to be taxed if not agreed.

Orders

18.I now make the following Orders :-

(a)  Paragraphs (1) and (2) of the Amended Interrogatories dated 23 November 2017 served upon the 4^th, 5^th and 6^th Respondents be dismissed;

(b)  The Applicants do pay to the 4^th, 5^th and 6^th Respondents the costs of and incidental to the administration of the Amended Interrogatories to be taxed if not agreed.

19.This is a Costs Order Nisi which would become absolute after 14 days if no application to vary the same is filed within 14 days from today. 

Miss Christine Yu instructed by Messrs. Rowdget W. Young & Co., Solicitors for the 1^st, 2^nd and 3^rd Applicants

Mr Ng Man Kin of Messrs. Kwok Ng & Chan, Solicitors for the 4^th, 5^th and 6^th Respondents