Timothy Herman Alberts v. Gerardus Everardus Loman and Others
Read the full judgment text of HCAP 35/2015 on BabelCite. This High Court CFI judgment was delivered on 4 December 2019.
1. The plaintiff applies for grant of administration of the estate of his late father. In his way is what purports to be his father’s last will, which he also seeks an order pronouncing against its validity. The parties named as the executor and beneficiaries under this alleged will are joined as the defendants in these proceedings. They have either failed to acknowledge service or indicated no intention to contest. Eventually only one of them appeared at the hearings of this action.
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HCAP 35/2015 [2019] HKCFI 2900 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 35 OF 2015 ________________________
________________________ BETWEEN
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________________________ J U D G M E N T ________________________ 1.The plaintiff applies for grant of administration of the estate of his late father. In his way is what purports to be his father’s last will, which he also seeks an order pronouncing against its validity. The parties named as the executor and beneficiaries under this alleged will are joined as the defendants in these proceedings. They have either failed to acknowledge service or indicated no intention to contest. Eventually only one of them appeared at the hearings of this action. Background 2.Herman Hendrick Alberts (“the Deceased”) was a Dutch national born on 28 October 1922. He had been a Hong Kong Identity Card holder since 1979, and had spent the latter part of his life here right till his death at the age of 91 on 4 May 2014. Prior to his death, the Deceased resided at his own property at Baguio Villa, Hong Kong (“the Baguio Villa Property”). 3.The Deceased was married and divorced twice. The first marriage took place in 1960, from which he was divorced in 1964. The second marriage took place in 1970, from which he was divorced in 1976. The plaintiff (“Timothy”) is his son from the first marriage, born on 13 July 1971[1]. 4.Timothy lives in Germany. After the passing of the Deceased, Timothy arrived at Hong Kong two days later. It was revealed to him various documents said to be testamentary scripts of the Deceased. The contents and notable features of these documents will be discussed below. For the purpose of the background, it is important to mention that amongst these documents, the one bearing the date of 8 February 2014 was soon suggested to Timothy to be the last will of the Deceased (“the Alleged 2014 Script”). 5.A fortnight later, a Gerardus Everardus Loman (“Loman”), the 1st defendant herein, contacted Timothy by email. Amongst other matters, Loman represented that he was appointed under the Alleged 2014 Script as the executor, and that he was prepared to so act. It would appear that Timothy was expected to act accordingly as well. 6.On the face of it, the Alleged 2014 Script named 10 beneficiaries of the estate of the Deceased, including Timothy as well as:
7.Whilst Timothy doubted whether the Alleged 2014 Script (and any of the other scripts) validly operates to dispose of the estate of the Deceased, he set out to resolve the matter by agreement amongst the parties concerned on the basis of a proposed distribution of the estate of the Deceased that would basically reflect the distribution that the Alleged 2014 Script appeared to suggest. Timothy started to correspond with Loman and some of those named as beneficiaries. 8.Eventually, Timothy came up with a proposal on the distribution of the estate of the Deceased amongst those purported beneficiaries. Timothy instructed solicitors to prepare a deed of arrangement whereby the parties concerned would agree to the grant of letters of administration of the estate of the Deceased to Timothy, and various sums out of the proceeds of sale of the Baguio Villa Property and the other assets in the Deceased’s estate would then be distributed to these parties including Timothy. Any residuary estate would then go to Timothy. 9.Before she had to leave Hong Kong then for a certain period of time, Ong actually signed the deed mentioned above at the office of the plaintiff’s solicitors in June 2014. However, Loman indicated his unwillingness to be named in the deed. Timothy therefore caused a new deed to be prepared. The subsequent correspondence shows that Loman apparently dissuaded Ong from signing the new deed, as he took the view that it would be prejudicial to her. 10.On 24 October 2014, Loman, through his solicitors, filed a caveat. 11.The eventuality was that the negotiation with Loman broke down, and Ong also refused to sign the new deed. Meanwhile, all the other non-charity beneficiaries named in the Alleged 2014 Script came to terms and signed the new deed (“the Deed”) in December 2014. 12.Without her agreement, Ong was not named as a party to the Deed. Nevertheless, it was provided in the Deed, as agreed among those who are parties to it, that a sum out of the estate of the Deceased would be distributed to Ong as well upon her accession to the Deed no later than 1 year after the letters of administration of the Deceased’s estate were issued to Timothy. Provisions were also made for the three charities named as beneficiaries under the Alleged 2014 Script. 13.The terms of the agreed distribution under the Deed are not relevant to the determination of the issues in this action. They will be referred to only at the end of this judgment. 14.In January 2015, Timothy applied for the grant of administration of the estate of the Deceased on the basis of intestacy. A warning to Loman as the caveator was issued. Loman filed an appearance. 15.The solicitors for Timothy and those then acting for Loman and Ong ensued in correspondence. At one stage, some of the other parties to the Deed also joined in persuading Loman to withdraw the caveat. Eventually, in September 2015, the caveat was withdrawn by consent. 16.As to Ong, the further negotiation to include her as a party to a supplemental deed failed. In fact, she has since failed to respond to Timothy’s contact. 17.On 18 December 2015, Timothy commenced the present action. As mentioned, he claims for the grant of letters of administration of the estate of the Deceased, and an order of the court pronouncing against the validity of the Alleged 2014 Script as the Deceased’s will. 18.As mentioned, Loman and the beneficiaries named in the Alleged 2014 Script were named as the defendants. Four of the defendants entered appearance indicating no intention to contest. One of the charities entered appearance to contest, but had the same withdrawn in 2016. Ong did not enter appearance. 19.Out of concern about the preservation of the Baguio Villa Property in the interim, Timothy applied ex parte and was granted on 19 October 2017 letters of administration ad colligenda bona (preservation grant) of the Deceased’s estate for the limited purpose of collecting, getting in and receiving the estate and doing such acts as may be necessary for the preservation of the property. According to counsel for Timothy, such limited administration has not proceeded satisfactorily. 20.As previously directed, the present action was heard substantively on 26 March 2019. On that day, Ong appeared in court. Notwithstanding her appearance, it was doubtful whether she understood these proceedings and her position as a defendant. In view of the nature of this jurisdiction and the interest of justice, this court gave Ong leave to file her acknowledgement of service and evidence in opposition out of time. She was reminded to seek legal advice. The hearing was adjourned with, amongst others, direction that English/Tagalog interpreter would be arranged at the resumed hearing for her benefit. 21.At the resumed hearing of this matter on 28 June 2019, Ong again appeared but regrettably without complying at all with the directions mentioned above. Since opportunity and indulgence have been provided to Ong, this court considered that it would not be right to allow her actual participation in the trial in the absence of her formal appearance and statement of stance, not to mention evidence. Ong remained in court as spectator. Principles 22.Section 5 of the Wills Ordinance, Cap 30 (“WO”) provides:
23.It is trite that a testator, with the necessary animus revocandi (intention to revoke), can revoke his will during his lifetime by any of the following modes prescribed by section 13 of the WO:
The various scripts 24.There are the following alleged testamentary scripts[2]:
25.Lawyers were involved in the preparation of the 1973 Will and the 2008 Will. The 1976 Will was not clear in this respect, though its terms were apparently drafted professionally and neatly typed out. But the 1976 Will was not signed. In any event, I accept as a matter of fact that the 1973 Will and the 1976 Will (even if signed) must have been revoked by the 2008 Will being the last will and testament of the Deceased as of that time. Section 13(1)(b) and (c) of the WO above refer. This was also expressly stated to be the effect of the 2008 Will[3]. 26.The 2008 Will and the 2012 Codicil were prepared by To, Lam & Co, signed by the Deceased and witnessed by Mr Bruce Lam (“Mr Lam”) of the firm and another. The gist of the 2008 Will was as follows:
27.By the 2012 Codicil, the Deceased revoked the gift to one of the charities under the 2008 Will and diverted the gift of such sum to Ong instead. The rest of the 2008 Will was confirmed. 28.The contents of the other scripts are set out below, in a manner as close as they appear, except for the references to the identity card and passport numbers of the individuals, which are redacted for the purpose of this judgment. References to chop are those to the address chop of the Baguio Villa Property. 29.The 2013 Cancellation Document was typewritten as follows:
A photocopy of the certificate of exemption of registration of person issued by the Immigration Department to the Deceased on 10 September 2008 (“the Certificate of Exemption”) appeared immediately below the above content on the document. 30.The 2013 Gift Document was typewritten as written:
31.Last, the Alleged 2014 Script bears at the top of it the following handwritten content:
which was followed by the following typewritten content: “ TO: WHOM IT MAY CONCERN,
[signed] [chop]” 32.Timothy managed to identify the signature of the Deceased in the above scripts (except for the 1976 Will which was not signed). However, he questions that none of these scripts should be accepted or relied on as the will and testament of the Deceased in respect of his estate. The burden is fairly and squarely on him to prove that. As mentioned, the present action was commenced targeting specifically the Alleged 2014 Script. The 2008 Will and the 2012 Codicil 33.Timothy’s case is that the 2008 Will and the 2012 Codicil must have been revoked by the Deceased subsequent to their execution. 34.The fact is that there is a large cross hand-drawn over each of the two pages of the main body of the 2008 Will. These are coupled with multiple signatures of the Deceased over the two pages so crossed out. The inference, it is said, is that the entirety of the content of the document was cancelled with confirmatory signatures. Such conduct on the document amounted to destruction of the same for the purpose of section 13(1)(d) of the WO. I find it safe to accept that as a matter of fact. 35.The 2012 Codicil is apparently intact. However, it is most unlikely that this document survived the destruction of the 2008 Will and validly exists on its own. Had the 2008 Will been crossed out as mentioned prior to the 2012 Codicil, there would have been no reason for the Deceased to instruct To, Lam & Co to prepare and to execute this codicil to the 2008 Will. Not only was it executed expressly as a codicil to the 2008 Will[4], it expressly provided that save as so modified, the 2008 Will was confirmed[5]. Therefore, the 2008 Will must have been crossed out after the 2012 Codicil has been executed. That the 2012 Codicil was somehow left intact, whereas the 2008 Will was crossed out, does not support its continued representation of the intention of the Deceased. The codicil does not exist independently from the 2008 Will. If the 2008 Will was revoked, so was the 2012 Codicil. The 2013 Cancellation Document 36.In terms of its purpose, the title of the document says it all, namely to cancel “the will”. The content follows by suggesting that the Deceased was cancelling “the will testament of Joana Lai”, which objectively could only be referring to the 2008 Will (and the 2012 Codicil) whereby Juanna was appointed the executrix and trustee as well as the residuary legatee. Be it really dated 18 November 2013 or not, this document objectively must have come into existence after the 2008 Will and the 2012 Codicil. 37.The 2013 Cancellation Document also stated that the executor of the estate of the Deceased was Loman. This on its face renders it doubtful as to whether the Deceased was cancelling the 2008 Will or merely replacing Juanna by Loman as the executor. However, whether or not the 2013 Cancellation Document had the effect of its stated purpose, namely to cancel the 2008 Will (and the 2012 Codicil), is immaterial for the present purpose. It was the conduct of crossing out of the will, coupled with confirmatory signatures, not the 2013 Cancellation Document, that revoked the 2008 Will (and the 2012 Codicil). There is no evidence to connect the crossing out of the 2008 Will and the 2013 Cancellation Document either, though such connection in terms of timing was possible as both should come about subsequent to the 2008 Will and the 2012 Codicil. As a matter of fact, one cannot take it further than that. The 2013 Cancellation Document could hardly stand as a will or testament of the Deceased. 38.However, the problems in this document do not end there. In his evidence, Timothy pointed out features in this document that gave rise to skepticism about the circumstances in which it came about. Some of these features also exist in the other homemade scripts examined below. 39.According to Timothy, whilst he and the Deceased have lived apart for many years, he visited the Deceased in Hong Kong from time to time throughout the 1990s. Since 2007, he has visited the Deceased about four to five times a year, mainly in view of the Deceased’s health condition. That was also described by Timothy as the best time of their relationship in terms of bond between father and son. Over the years, Timothy had the opportunities during interaction with the Deceased to observe the Deceased’s view and conduct of daily life. 40.The Deceased was the retired head of credit control of a bank. Timothy described the Deceased as strict and proud. The Deceased was a meticulous person and would pay attention to details. Such character, according to Timothy, was known by the people who knew the Deceased. Against such background, various features of the 2013 Cancellation Document caused Timothy to puzzle. 41.If the 2013 Cancellation Document was in fact dated as stated there, that would be 16 months after the execution of the 2012 Codicil. During the 2 weeks of his visit to the Deceased then, who was in the hospital, Timothy observed that the Deceased might be affected by the heavy dosage of painkillers and antibiotics, and appeared erratic and moody. Nevertheless, the Deceased still impressed him as strict and unforgiving, and would even care to correct his spoken English during their conversation. Yet the 2013 Cancellation Document contained on its face numerous spelling mistakes[6]. Amongst others, the Deceased got the name of Juanna wrong, which Timothy considered to be most unexpected. According to Timothy, Juanna was very close to the Deceased, and the Deceased at one stage had developed the idea of proposing to her. 42.Again, as a matter of fact, one can take the above observation of Timothy’s no further, such as suggesting any mental incapacity of the Deceased then to come up with the homemade script. However, Timothy pointed to some other relatively more objective features that caused him concern. 43.First, since the 1973 Will up to the 2012 Codicil, the Deceased had enlisted professional help in the drafting of his testamentary scripts. With the exception of the 1976 Will, the others were also executed in the professional manner. In as late as February 2014, the Deceased would still execute a power of attorney authorizing Timothy to deal with his overseas bank accounts to enable transfer of money to bank account in Hong Kong. The Deceased passed away 3 months later. Yet, the 2013 Cancellation Document, and all the other scripts, was somehow homemade. 44.Second, a copy of the Certificate of Exemption was incorporated as part of the 2013 Cancellation Document, but this was oddly done in respect of this but none of the other homemade scripts. 45.Third, it is difficult to understand why the Deceased would state that the executor was Loman instead of Walter Kent. The latter name never featured in any of the scripts in question. The name did appear in the correspondence, which brings me to another observation about Loman’s involvement. 46.Walter Kent was referred to in the correspondence between Loman and Mr Lam of To, Lam & Co between May and July 2012. According to Timothy, Kent was the successor of the Deceased at the bank he used to work for, and the two became acquaintances. Kent has also passed away by now. In late May 2012, Loman apparently wrote to To, Lam & Co repeatedly asking for the 2008 Will. The firm apparently did not accede to such request. Loman followed up by further email message dated 27 June 2012, making allegations concerning Walter Kent and Mr Lam. By letter to Loman dated 13 July 2012, the firm put on record their instruction from the Deceased that there was no need for Loman to get involved in the matters referred to in his email message. Such letter was sent to Loman in accordance with the signed written instruction of the Deceased dated 10 July 2012. 47.As mentioned, the Deceased then executed the 2012 Codicil on 17 July 2012, which was prepared by the firm and witnessed by Mr Lam. Loman did not rest, but followed by email to Mr Lam and Walter Kent, whereby Loman identified himself as a close friend of the Deceased, and the sister of the Deceased (and the 4th defendant herein) is a friend of Loman’s mother. Loman complained that Walter Kent and Mr Lam sent Ong away from the Deceased’s residence on 17 July 2019, alleging that that was done without written permission of the Deceased. Loman accused them of trying to exert pressure on the Deceased to sign papers as his last will. 48.The above accusation prompted the firm to write to the Deceased on 20 July 2012, enclosing the emails from Loman and explaining to the Deceased the follows:
49.In his evidence, Timothy confirmed the above description of the relationship between Loman and the Deceased’s family. It was in about 2012 when Timothy came to know Loman. However, the message he has got from the Deceased about Loman was that Loman was a “busy body”. At that stage, when the prevailing testamentary script was the 2008 Will, Loman seemed to develop an idea that the Deceased ought to distribute his assets amongst the family members instead of giving the major share to Juanna. According to Timothy, the Deceased was neither happy nor keen to have Loman to “stick his nose” into his business. This seemed to coincide with the observation of Mr Lam at the relevant time and the written instruction of the Deceased to the firm to respond to Loman mentioned above. 50.The concern of the solicitors then acting for the Deceased materialized just two weeks after the Deceased’s death. As mentioned, Loman apparently put Timothy on notice of his executorship under what was said to be the last will of the Deceased. The correspondence since May 2014 recorded that Timothy asked for time to settle the Deceased’s affairs and to ascertain the legal position in Hong Kong. Loman responded by threatening legal action, and stated that Timothy could expect HK$2,000,000 out of the estate of the Deceased and “nothing more, nothing less”. As mentioned, Timothy indeed attempted to come to terms with those said to be beneficiaries named under the Alleged 2014 Script. As to the position of Loman in this respect, the above discussion refers. 51.All evidence considered, including those specifically discussed above, I tend to share the skepticism about the circumstances in which the 2013 Cancellation Document came into existence. In any event, it was not, as it could not be, a will on its own. The 2013 Gift Document 52.Different from the 2013 Cancellation Document, the 2013 Gift Document set out on its face disposition of specific properties by the Deceased to Ong. Again, this document fell short of the requirements for a valid will pursuant to section 5(1) of the WO. 53.This document is so defined (as a “gift document”) for the purpose of this judgment, because it is literally open to interpretation as to whether the express intention to dispose of the property was inter vivos or testamentary in nature. Nowhere in this document suggests that the gift must take effect upon his death. Further, apart from the Baguio Villa Property, the books, the book shelves and the other contents of the property, the document was completely silent in respect of the other assets of the Deceased. 54.The discussion in respect of the peculiar features in the 2013 Cancellation Document pointed out by Timothy above refers. Similar features exist in the 2013 Gift Document[7]. Somehow the address of the Deceased was chopped several times and sporadically. 55.The 2013 Gift Document was probably dated 18 November 2013 as stated, because the date was actually referred to in the body of the document. Assuming the 2013 Cancellation Document was indeed made on the same day as the 2013 Gift Document, and intended to be read together, one would wonder why the Deceased would decide to come up with two documents with separate titles and separately signed instead of one script. No answer could be given by reference to the primary facts or inference. The uncertainties and unreliability of the two documents would not be removed but only compounded by assuming that they were indeed intended to be read together. 56.In the circumstances, it is difficult to conclude with no reasonable doubt that this document, read on its own or together with the 2013 Cancellation Document, embodies the testamentary intentions of the Deceased pursuant to section 5(2) of the WO either. The Alleged 2014 Script 57.If the 2013 Gift Document, whether or not read together with the 2013 Cancellation Document, was ever a will of the Deceased, such will would have been superseded by what is said to be the last testamentary script of the Deceased, namely, the Alleged 2014 Script. At least, this is the situation presented by Loman to Timothy. Hence the commencement of the present action targeting that script. 58.This document is said to be the last testamentary script of the Deceased because of its date. However, the date of “Feb. 8, 2014” was handwritten on it and there is actually no evidence as to time at which or the circumstances in which the date was so written on this document. One also query why the Deceased, if it was indeed he, would somehow chose to write separately instead of typing the date as well on this document. This is not a feature shared by the other homemade scripts. 59.The other handwritten part of this document was the name of Alexander Mak. The documentary evidence cast no light on this person. Nor could Timothy say more than speculate in his evidence who this person may be and why this person was named in this connection. 60.Again, the unusual features in the other homemade scripts mentioned above also appear in this document. Besides grammatical problems, the age of the Deceased was again wrong. The names of Juanna and Timothy as well as the word “executor” were also misspelt. The naming of Loman as the “new executor” was suspect when the Deceased had given clear instruction in as early as 2012 to keep Loman away from his estate affairs. Further, assuming that this document was indeed dated 8 February 2014, that would be just after the Deceased had executed a formal power of attorney in favour of Timothy to handle the bank transfer as well as just one week after Timothy has left Hong Kong. 61.This document does not satisfy the requirements of section 5(1) of the WO. Nor could it be concluded in the circumstances mentioned above that it without reasonable doubt embodies the testamentary intention of the Deceased under section 5(2). Conclusion 62.It was submitted on behalf of Timothy that the homemade scripts, albeit bearing what appear to be the signatures of the Deceased, came into existence in circumstances that are highly suspect. All the evidence considered, I agree. I find that none of them, separately or any of them collectively, should be accepted as a matter of fact as valid or reliable representation of the last testamentary wish of the Deceased. 63.When the other professionally prepared and executed wills and codicil of the Deceased, as I also find, have been revoked and not replaced by another valid will, the estate of the Deceased fall to be distributed in accordance with the intestacy rules under the Intestates’ Estates Ordinance, Cap 73. 64.Rule 21(1) of the Non-Contentious Probate Rules, Cap 10A provides that:
65.As the only lawful and surviving child of the Deceased and entitled to the estate, Timothy is entitled to the grant. Timothy and the other defendants 66.Whilst Loman is seen to have purportedly acted in advancement of the interest of those said to be beneficiaries under the Alleged 2014 Script, Timothy is not seen to have dispute with any one of them. As mentioned, Timothy proceeded from the outset with his idea of distributing the assets of the Deceased to basically reflect the specific bequests under the Alleged 2014 Script. Except for Ong, who backed out because of Loman’s intervention, Timothy managed to come to terms with the other non-charity beneficiaries. The correspondence shows that some of the family members actually showed support to the course that Timothy took and tried to reason with Loman. In court, Timothy confirmed that he personally holds nothing against Ong. He also confirmed his intention to see that the terms of the Deed would be honoured, though Ong is not a party to it. 67.The parties to the Deed confirmed no objection to the grant of letters of administration to Timothy. Pursuant to the Deed, they will respectively receive an agreed sum from the estate of the Deceased. It is not necessary to disclose the actual sums for the purpose of this judgment. Insofar as Ong is concerned, the sum designated for her, on condition that she accedes to the Deed no later than 1 year after the letters of administration of the Deceased’s estate are granted, will actually exceed that as provided for her in the Alleged 2014 Script. 68.That the Deed provides that Timothy would be entitled to the residuary estate of the Deceased is neither here nor there, as none of the non-parties to the Deed, including Ong, would have been in a position to contest Timothy’s entitlement in this respect in any event. Disposition and costs 69.I pronounce against the validity of the Alleged 2014 Script as a will; and order that letters of administration of the estate of the Deceased be granted to Timothy. 70.Counsel for Timothy suggested that further directions may be necessary in connection with the administration of the estate, which, as requested, I would leave it to him to apply for in due course. 71.It was at one stage suggested that in the event of success in these proceedings, Timothy may apply for costs of these proceedings, including costs thrown away by the adjournment as a result of how Ong has conducted in these proceedings. In closing, counsel for Timothy confirmed that he would not be seeking costs of these proceedings against any of the defendants, save that his costs shall be paid out of the estate of the Deceased. I so order.
Mr Justin Ismail, instructed by Haldanes, for the Plaintiff The 1st, 3rd, 7th, 8th, 9th and 11th Defendants were not represented and did not appear The 2nd Defendant appeared in person Tanner De Witt for the 4th, 5th and 6th Defendants was excused Bond Ng Solicitors for the 10th Defendant was excused [1] The relationship is established by the documents issued from the relevant authorities of various countries (originals or original copies), the authenticity of which was proved by the evidence of Timothy under oath in court which was the best evidence available in the circumstances. [2] The originals were lodged with the court. [3] Clause 1. [4] Clause 1. [5] Clause 4. [6] Such as “excecutor”. [7] The age of the Deceased was wrong. Bookshelf was wrongly spelt. There are also grammatical problems. |
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