Tam Sing Yu Anita v. Chu Chung Yan David and Another

HCAP 25/2022

[2023] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 25 OF 2022

(TRANSFERRED FROM HCMP 274 OF 2021)

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D E C I S I O N

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1.This is the application by the plaintiff (“P”) for revocation of the Letters of Administration granted to the 1^st defendant (“D1”) in relation to the Estate of the Deceased, and consequential orders.

2.I have considered P’s 1^st affidavit of 24 February 2021 and D1’s affidavit of 26 August 2022. I have also considered the contents of the Will. On its face, the Will was executed by the Deceased, and attested to by a solicitor and a clerk of that solicitor’s firm. P is named the sole executrix therein. She was a close friend of the Deceased.

3.A copy of the Will was first found by D1’s wife and a friend of the Deceased in 2014 at the Deceased’s home after her death. P was then approached. She initially said that she did not know where the original was. She has now explained on oath that that was because the Will was given to her some 30 years ago in the 1980s, and that she had moved residence several times. She subsequently in 2019 found the original. Through the assistance of the Law Society, a solicitor who could have been the attesting solicitor has been contacted. He confirmed that he had witnessed similar wills while he was in practice, though he could not recall the circumstances in which the Will was actually executed.

4.By the time when the original was obtained, letters of administration had been granted to D1, and the Estate partly administered. D1 stands neutral to P’s application.

5.On the evidence before me, I am satisfied that P has discharged the burden on her to establish that the Will is duly signed.

6.Apart from the question of costs, I make an order in terms of the draft order placed by P before me, save that the time for Ds to render accounts under §3 will be 42 days from the date hereof, and that the delivery of assets etc pursuant to §4 will be another 42 days from the date when the accounts are rendered pursuant to §3.

7.On costs, I have considered the following matters. Had the Deceased in fact died intestate, D2, her brother, would have been the only surviving beneficiary (though he has since also passed away). D1 is a clergyman. He is not a beneficiary of the Estate. He only assisted with the administration of the Deceased’ Estate as the agent of D2, who was not in Hong Kong, out of kindness. Although D2 has gifted to D1 and his wife a landed property from the Estate, D1 has made and carried out plan to establish a charitable institution in memory of the Deceased, and to transfer the property to that institution. D1 has all along acted reasonably, and has indicated soon after notification of the location of the original Will that he would adopt a neutral stance to P’s application. I observe further that the current action is partly the result of P’s failure to locate the original Will at the initial stage. According to D1’s evidence, as the original Will could not initially be located, P knew and consented to letters of administration being applied for. In fact, in an email of 11 March 2015, P actually said that “I would appreciate if the brother is not aware of my existence. If he is willing to use his right to proceed with the execution of the will, that will be good.”

8.In all the circumstances, I refuse P’s request that Ds’ costs be borne by D1. I order that both P’s and Ds’ costs of and occasioned by this action be paid out by the Estate on a common fund basis, to be taxed if not agreed.

Ms Jolie Kung instructed by Yu, Tsang & Loong, for the Plaintiff

Mr Billy Mok instructed by Hastings & Co, for the 1^st and 2^nd Defendants