Hsu Ngai Yuen v. Cheung Mei Lan Wendy also known as Zhang Huaxuan and Others
Read the full judgment text of HCAP 39/2019 on BabelCite. This High Court CFI judgment was delivered on 31 March 2023.
1. In this action, the plaintiff (“the Son”) seeks to propound a document said to be written by his late father, Mr Hsu Chin Yin (許金印) (“the Father”) and dated 22 January 2010 as his last will. The Son also seeks rectification so as to remove a possible doubt about the terms of deposition under the alleged will, as well as appointment of himself as the sole administrator of the Father’s estate.
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HCAP 39/2019 [2023] HKCFI 909 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 39 OF 2019 (Formerly known as High Court Miscellaneous Proceedings No. 1522 of 2018) ________________________
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________________________ JUDGMENT ________________________ 1.In this action, the plaintiff (“the Son”) seeks to propound a document said to be written by his late father, Mr Hsu Chin Yin (許金印) (“the Father”) and dated 22 January 2010 as his last will. The Son also seeks rectification so as to remove a possible doubt about the terms of deposition under the alleged will, as well as appointment of himself as the sole administrator of the Father’s estate. 2.The Son has the support of all the other children of the Father, namely his elder sisters being the 2nd defendant 許藝靜, the 3rd defendant 許茹珍 (“Chun”) and the 4th defendant 許藝藝 (“Ngai”) (or collectively “the Daughters”). 3.On the opposing side is the Father’s second wife, the 1st defendant (“Cheung”). Cheung has in fact petitioned for divorce from the Father in 2015. Only that the matrimonial proceedings never reached conclusion before the Father passed away in 2016. Therefore, Cheung retains and asserts in the present action her locus as the surviving spouse of the Father, and hence a potential beneficiary of his estate. Peculiar feature 4.The alleged will is contained in an 8-page document typed out under the title of “我的囑咐” (“the Alleged Will”). The first 7 pages contains a meticulous account of the life of the Father from birth up to the conception of the Alleged Will. The terms of the disposition of his assets followed. 5.It will be seen from the discussion below that there is eventually no longer real dispute that the Alleged Will was made by the Father. Subject to the dispute raised by Cheung as to the Father’s account of specific incidents concerning her and his intention behind the making of the document, the Father’s detailed account effectively serves as his own recital for the Alleged Will. This becomes a peculiar feature of the present case, which probably seldom appear in dispute of this nature. Background 6.The following background is noted partly as a matter of his own recital in the Alleged Will and partly as a matter of evidence of the Son. 7.Also known as Hsu Ming Hai (許明海 / 許銘海), the Father was born on 21 September 1948 in rural Fujian Province of the Mainland. He was born out of a rural family. Life then was harsh. Hoping to be rid of poverty, the Father treasured education opportunity and excelled in the subject of Russian Language. That enabled him to be admitted in 1964 to a prestigious provincial secondary school where he also ranked top in class. 8.However, the Cultural Revolution followed, which stalled the Father’s tertiary education plan. He ended up working in a collective farm earning negligible income. The following decade of unrest also affected him, including landing him in jail for a couple of years. By the time when he returned to his home village, he was already 28 years old. That was when he met his first wife. 9.In 1975, the Father was married to the late Li Sau Ngai (李秀倪) (“the Mother”). They gave birth to the Daughters and the Son in 1976, 1977, 1978 and 1980 respectively. The Father resumed his pursuit for education but eventually decided to come for opportunities in Hong Kong. 10.In Hong Kong, the Father started working as a factory worker and then up the ladder to becoming the head of department eventually the factory. Subsequent to the movement trend of local factories north to the Mainland, the Father also decided to branch out to accounting and computing, and started to work as a clerk in travel agencies. In the field, he eventually managed to reach the position of the chief accountant of the Hong Kong Tour Guides General Union (“the Union”). He also started to invest in stocks and foreign currencies. Maintaining a frugal life, the Father started to accumulate wealth. 11.The Mother, the Daughters and the Son came to Hong Kong in 1985. The Father was able to move the entire family from a wooden shack to an apartment in Tseung Kwan O (“the Family Home”) in 1992. He also managed to pay for the two youngest children, Ngai and the Son, to study in Australia until their university graduation. All along, the Father took pride in not depending on Government subsidies or assistance. 12.The Daughters lived with the Father and the Mother until they were married in 1995, 2002 and 2004 respectively. The Son continued to live with them. 13.In early 2006, the Mother was diagnosed with terminal cancer of the endometrium. She passed away in a matter of months on 7 March 2006. On the day before she passed, the Mother executed a will bequeathing all her assets to the Son. In the Alleged Will, the Father illustrated at length his grief about the loss of the Mother then. 14.Later in the same year, Cheung entered into the picture. In the Alleged Will, the Father had this to say:
15.Essentially, in the midst of realising that his remaining life had to go on, the Father came to meet Cheung in Shenzhen. He set out what he was given to understand to be her background, business and family. He also recited his then impression of her. Both persons were minded for their mutual company. Accurate or not, that was how the Father viewed his acquaintance with Cheung at the time. There is no dispute that Cheung had a prior marriage from 1985 to 1990. 16.The acquaintance between the two rather quickly developed into marriage later in the same year. The Father was then 58 and Cheung was 43 years old. 17.According to the Father’s account, which Cheung disputes, the Father and Cheung had certain prenuptial agreement on 2 November 2006. The Father had this to say in the Alleged Will:
18.Essentially, the Father referred to what he was given to understand to be the business and assets owned by Cheung. He referred to the couple’s discussion and confirmation that they would remain financially independent from each other, and would assert no claim to each other’s assets. Specifically, the consensus was that the Father’s assets would go to his children while Cheung’s assets would go to her own children. 19.By then, the Daughters had moved out of the Family Home after their respective marriages by then while the Son, together his wife and child, were still residing there with the Father. Chun moved back to stay with the Father after her divorce in 2010 and stayed there for a couple of years. Ngai, who had moved to Taiwan upon her marriage would return with her children to visit Father several times a year. Usual outings and family celebrations with the Father in Hong Kong also took place. 20.However, the change brought about by the joining of Cheung in the family household did not work out well. Series of allegations came about, including (i) the lack of financial contributions towards the household by Cheung despite her residence at the Family Home; (ii) mistreatment of the Father by Cheung; (iii) baseless accusations against and unreasonable conduct towards the Father, the Son and the Daughters in front of the Father; and (iv) unreasonable personal behaviour at home. Cheung also disputes them. 21.Dispute about the above allegations aside, the fact was that the Son decided to move out of the Family Home with his family in 2008. According to him, he tried to avoid further clash with Cheung, and it was only when the Father requested that he and his family moved back to live with him in June 2009. They had stayed there since until 2013. 22.In his account in the Alleged Will, the Father also stated his belief at the time that Cheung had not honoured their prenuptial agreement in that she had misappropriated substantial sums of money from him and sold his securities without his consent. Dispute in respect of the above allegations concerning Cheung aside, what cannot be disputed is that the Father in his account in the Alleged Will stated his belief at the time that first, Cheung was wrongful; and second, Cheung had her part to play in causing the breakdown of the family harmony. Rightly or wrongly, that was his view of the state of affairs. 23.The fact was also that Cheung petitioned for divorce from the Father in June 2015. The Father was then about 67 years old. Whilst the irretrievable breakdown of the matrimonial relationship was obvious, the matrimonial proceedings was dragged on because of the couple’s dispute in respect of Cheung’s claim for financial relief and the Father’s property. 24.As mentioned, the Father did not live to see the conclusion of the divorce proceedings, and passed away on 19 October 2017. That was how Cheung, contrary to her own petition, remained legally the surviving spouse of the Father. Hence her locus in these proceedings. The Alleged Will 25.The Alleged Will was dated 22 January 2010, which was about 4 years after the marriage between the Father and Cheung. The Father was then 62 years old. 26.As mentioned, the Father recited his life up to his acquaintance with Cheung in the Alleged Will. Immediately following such account, the Father turned to explain his frustration about the matrimonial relationship with Cheung by the time of the document:
27.Essentially, the Father reiterated the principle behind the couple’s prenuptial consensus that his assets should go to his own children while Cheung’s assets should go to her own children with no exception. He complained that Cheung was not prepared to honour that. Concerned about his own health, and out of his intention to prevent the kind of tragedy and shame expected to result from any family dispute over succession to his assets after his death, the Father decided, in his words, to write something for what if he died. 28.The Alleged Will continued with what is effectively the terms of the disposition of his assets:
29.The Alleged Will continued with the following remarks:
30.The Alleged Will concluded with the following reference to the safekeeping of a copy of the will by Ngai:
31.What was stated above in the Alleged Will contained the following essential features:
32.The Alleged Will does not appoint a personal representative. 33.The Alleged Will was signed apparently by the Father, but contains no witness attestation. It was dated 22 January 2010. The Alleged Will coming to light 34.After the passing of the Father, according to the Son, the Alleged Will bearing the terms mentioned above was found kept in a high shelf in a secure cabinet in the Father’s room at the Family Home (“the Home Version”). 35.Further, Ngai produced the version of the Alleged Will which, according to her, was handed by the Father to her right before her flight back to Taiwan on 24 January 2010, i.e. 2 days after the date of the Alleged Will. It was apparently signed by the Father in both Chinese and English, as well as dated the same date as the Home Version (“the Ngai Version”). 36.As will be discussed below, the two versions of the Alleged Will were in fact identical insofar as the terms of the disposition are concerned. They only slightly differ in some format and wordings in the part preceding the disposition part. 37.The Son and the Daughters have filed their affirmations of testamentary script deposing to their unawareness of any other document that could be a will of the Father. Cheung has not filed any affirmation of testamentary script despite court directions. However, she suggests no other testamentary script of the Father either. Section 5 of the Wills Ordinance, Cap 30 (“WO”) 38.Section 5(1) of the WO provides that no will shall be valid unless the will is signed by the testator in the presence of 2 or more witnesses present at the same time and each witness either attests and signs the will or acknowledges his signature in the presence of the testator. This did not happen in the case of the Alleged Will. 39.Section 5(2) of the WO provides that:
The Dispute 40.The pleaded case of Cheung is brief. Essentially, she disputes that the Alleged Will was created or signed by the Father. As mentioned, this was not, and in my judgment could not be, insisted upon at the trial. Nevertheless, on her behalf, the following issues were also raised in argument at the trial:
The Principles 41.Clearly the introduction of section 5(2) of the WO is to save the statement of clear testamentary intentions from failing due to the lack of compliance with the formalities of a will out of ignorance or inadvertence: see In the Estate of Williams (1984) 36 SASR 423 at 425; In the Estate of Masters (1994) 33 NSWLR 446 at 450A, 450F and 451F-452F. That includes the lack of attestation by witness pursuant to section 5(1): see Re Estate of Ho Chi Yin [2016] 1 HKLRD 757 at 772; Yeung Yuen King v. Kong Wai Ha HCAP 19/2010 (13 March 2014). 42.The Son has the burden under section 5(2) of the WO to prove that whilst it fails in terms of formalities under section 5(1), it nevertheless without doubt embodies the testamentary intentions of the Father and, insofar as those specific issues raised by Cheung are concerned, notwithstanding those challenges. 43.How the document was written is indicative of its nature. That includes describing itself as a will: see Lam Ping v. Zi Yan Lu, HCAP 13/2004 (31 March 2010) at §76; Re Estate of Ho Chi Yin (above) at 769; Ho Wai Ping v Ho Ka Man Carmen [2017] 2 HKLRD 158. That also includes the attempt to replicate the form of a will: see MacKenzie v. Osburn [2005] NSWSC 657 at §43. Signing and dating the document are indicative of confirmed intention that it should take effect: see Wood v. Smith [1993] Ch 90 at 111E-F. 44.How the document has been kept is indicative of whether the maker intends it to be taken seriously. That includes entrusting the document to a particular person for the reason for safekeeping: see In the Estate of Masters (above) at 453D; 469B, and storage of the same at a particular location or in a particular manner: see MacKenzie (above) at §44. 45.Insofar as its content is concerned, the statement of the person as to what and how his property shall be handled and disposed of upon his death would be indicative of the same embodying testamentary intention: see In the Estate of Masters (above) at 469C; Mackenzie (above) at §§46-47. 46.Further, the principles governing the construction of a testamentary script are trite: see The Secretary for Justice v. Joseph Lo Kin Ching & Ors (2015) 18 HKCFAR 169 at §§27-33 (adopting Marley v. Rawlings [2014] UKSC 2). They are correctly summarised by counsel for the Son. In identifying the intention of the testator from the wordings of the document being construed, context is key. Context includes (i) the meaning of the words used in the relevant provision (ii) the overall purpose of the document (iii) any other provisions of the document (iv) the facts known or assumed by the testator at the time that the document was executed, and (iv) common sense. The document should be read as a whole. Ambiguities and contradictions are probably not unexpected from a homemade testamentary document. 47.Where the construction is doubtful, there is the presumption against intestacy: see Tan Cheng Gay v. Tan Choo Suan (2015) 18 HKCFAR 430 at §§55-57. 48.Extrinsic evidence is admissible for determining whether the document in question embodies the testamentary intentions of the deceased: see Ho Wai Ping (above) at 181. Evidence of the circumstances surrounding the testator at the date of his will is admissible as an aid in the construction of the will. Section 23B of the WO applies to a will insofar as (i) any part of it is meaningless; (ii) the language used in any part of it is ambiguous on the face of it; and (iii) other than the evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of the surrounding circumstances. In any of these cases, section 23B(2) provides that extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation. This echoes the common law position: see Joseph Lo Kin Ching (above) HCMP 853/2012 (22 February 2013) at §31. Witnesses 49.The Son and Cheung gave evidence. Their respective background mentioned above refers. By the time of the trial, the Son has been the Secretary General of the Union for about 5 years. Apart from suggestion that her business in the Mainland failed in 2009, there is no evidence that Cheung is gainfully employed. 50.As an overview, I am impressed that the Son is a truthful and straightforward witness. Corrections aside, there is no substantial discrepancy between his evidence and the documents. Nor did he attempt to raise any allegation for the first time that would surprise his opponent or the court. Relative to Cheung, he is in a better position to verify the story of the Father and the Mother recited in the Alleged Will to the extent he managed as a family member since acquiring cognitive power, be it hearsay from the parents or his personal knowledge. 51.The Son stayed objective and fair in accepting and admitting state of affairs put to him. Amongst others, he never sought to hide the friction and clashes which he had had with the Father at different stages while trying to make this court understand that such circumstances might not differ from what may be expected from any given family. Insofar as the father and son relationship is relevant to considering the likelihood of the Bequest, the undeniable fact was that when the Mother passed away when he was 26 years old, she was prepared to and did bequeath all her assets to him. In the Alleged Will, the Father referred to that and expressed agreement to the Mother’s decision. The Father did similar thing as the Alleged Will suggests. 52.As a witness, Cheung is very much the opposite kind. The factual issues in the matrimonial dispute with the Father brought about by her own petition for divorce two years prior to the Father’s death are not for this court to visit. However, the undeniable fact was that their marriage was irretrievably broken down even in her view. She retains her locus as wife in the present action merely as a result of the Father’s untimely passing before the divorce that she sought was decreed. She does not contest the validity of the Alleged Will on the basis that the Father could not have intended disregard her well-being at the time of the document. She opposes with established hostility against the Father while seeking to enforce her rights as surviving wife upon intestacy of the Father. At one point before intervention of her legal representatives, Cheung even questioned the blood relationship between the Father and the Son in writing. In court, she also dismissed the Alleged Will as “廢紙” or, literally, scrap paper. All tend to demonstrate how extreme Cheung was prepared to go. 53.Cheung as a witness was evasive, and at times irrational and nonsensical. She was in denial of the slightest matter which she was reasonably expected to confirm in the ordinary course of cross examination. Whenever this court intervened to ensure that she understood the questions put to her and to give her a further opportunity to respond, she came up with her answers without difficulty most of the time. That is not to say that there was any problem with counsel’s articulation of his questions to her in the first place though. That was sheer unreasonable in-cooperation on her part. Those instances are too numerous to mention, but counsel for the Son is industrious enough to have them set out comprehensively in his submission. I have considered them, some of which will be specifically referred to in the discussion below. What the Alleged Will on its face says 54.The Son contends that the Alleged Will bears all the hallmarks of a will. This, for any reader, should be sufficiently apparent from its terms and wordings. 55.The Father chose how he worded the document. He was the author but a layman at the same time. He started by giving the document the title “我的囑咐”. In the document, he referred to it as “此囑”. Cheung argues that “囑咐” materially differs from “遺囑”. Whilst “遺囑” is the accepted or even the official Chinese term for a will, this per se does not render the use of the title by the Father any less than that for a document embodying his testamentary intentions. The title must be read together with the substance of the document as a whole. 56.The document contains at the outset identification information with particularity normally expected of a will. The Father put down his name in both English and Chinese, his date of birth (both western and lunar calendar dates), his Hong Kong Identity Card number and place of birth. Certain formality and seriousness of the document must be intended. 57.Read in the context and together with the substance of the document, what its title was intended to bear for what follows should be clear. The recital in the Father’s own words clearly explains the conception of the Alleged Will (ie “也應為我的身後寫幾個字，免得身後產生紛爭”) which was to prevent any future family dispute regarding his assets after his death. That was immediately followed by the terms of the disposition. The testamentary intention of the Father was there. 58.Apart from the above recital of the Father, the disposition, including the Bequest, was expressly stated to take effect upon his death. His remarks regarding how his assets should be utilised by the successor and how specific family members should be cared for were also expressly intended for the situation after his death. These are clearly testamentary in nature. 59.The Father cared to conclude the document by signing and dating it. In court, Cheung did not dispute that that appears to be the Father’s signature. These, albeit not in isolation, are indicative of intention for the document to be treated as a formal and serious instead of a casual one. That the Alleged Will was homemade 60.Cheung was at one point still reluctant to admit that the Father was fond of literature and writing. She also asserts that the Father knew the law and the formalities of making a will. Essentially she questions whether the Father would intend the Alleged Will made by himself to take effect. She suggests that he would have gone to a lawyer for the preparation of a proper will. 61.In view of the evidence in respect of his background and other circumstances, I find that the Father possessed great passion for literature and writing as well as history. He was involved in the publication of a book on a Chinese historical figure 《鄭成功故事傳說》. He was confident in his writing ability. He composed poems, including his works and the poem in memory of the Mother recited in the Alleged Will. That Cheung would see fit to understate the Father’s attainments in literature is unfortunate. 62.Immediately before he came to state his intention behind writing about the disposition of his assets in the Alleged Will, the Father also stated “我每天還在寫書，為工會，校友會，業主法團書寫文件”. In other words, he then still wrote daily. He also wrote formal documents for the union, alumni and owners’ corporation. 63.In support of her case that the Father knew or ought to know the necessity of engaging a lawyer for preparing his will, Cheung suggested in her evidence that the Father had knowledge about Hong Kong law because he had been in the PRC army back in the late 1960s to 1970s. This defies logic and reasonable understanding. 64.Cheung also stressed that the Father knew and would have instructed a lawyer if he was really minded to make a will. In support of such assertion, she referred to the management of his rental affairs, his financial arrangements, the Mother’s will and his documents filed with the Family Court in the divorce proceedings. 65.First, pleading point aside, the assertion about the Father’s alleged experience or pattern of engaging lawyer in respect of his affairs is not supported by real documentary evidence. Insofar as the rental affairs are concerned, the rental agreement available in the evidence, be it borrowed from those prepared by estate agency or property developer, was clearly not a product of a lawyer. 66.Second, reference is made to some loan agreements with a certain third party, Fong Lee Na. Neither do they appear to be the products of trained legal professional, nor was the evidence of Cheung in respect of them consistent and credible. Reference is also made to a couple of mortgage documents involving the Father. However, such documents, to begin with, fall into a completely different category, being bilateral contractual conveyance documents, the preparation of which in the normal course of events would hardly be expected to be taken up by the lay parties concerned. On the contrary, that a will, being unilateral declaration of testamentary intentions, may be homemade is no news. Nor is that extraordinary. 67.Third, that the Mother’s will was admittedly prepared by solicitor does not advance Cheung’s case. In terms of knowledge about the feasibility of engaging a solicitor to prepare a will, it does not objectively require actual experience. Further, the evidence is that the idea of engaging a solicitor for the Mother’s will came from Chun’s husband soon before her passing. The Father, as he explained in the Alleged Will, agreed with the arrangement. Further, the arrangement must have been made at quite the last minute, because the Mother signed her will on the day before her passing. The Father did not personally witness the execution of the Mother’s will. According to the Son in court, there was no discussion in respect of the execution of the Mother’s Will afterwards. This is not a matter within Cheung’s personal knowledge to contradict. Nor did her counsel do that at the trial. The will was in English. All that the Father admittedly knew was that the Mother bequeathed all her assets to the Son, with which he agreed. The Father expressly said so in the Alleged Will. 68.Fourth, the assertion that the Father engaged a solicitor to prepare the documents filed with the Family Court for the divorce proceedings, such as the Form E, is also incredible. Plain reading of the documents concerned would leave no reasonable person with any impression that those were the products of trained legal professional. On the contrary, they reflect the style of writing and expression of the Father as what can be seen from the Alleged Will. 69.That the Father wrote his own will per se gives rise to no plausible doubt about his intention to treat that seriously. In his circumstances, as discussed above, that he would choose to do so is not surprising at all. That the Alleged Will was made at the time 70.The Father made the Alleged Will 4 years after the marriage of the Father to Cheung. As to what drove the Father to do so, he himself explained the circumstances in the document itself as mentioned above, including the instances of alleged dishonesty on the part of Cheung towards him after her affairs. However, as he recited, the major problem was that Cheung did not honour the prenuptial consensus that their finances and assets should be kept separate. 71.The details of the alleged conduct on the part of Cheung in breach of the alleged prenuptial consensus were set out by the Father in the records of financial disputes, his Form E and other documents filed for the divorce proceedings. They concerned the various instances causing the Father loss of his money and assets engineered by Cheung in the absence of his prior knowledge during the 3 years before the making of the Alleged Will. The dispute never had the chance of reaching the stage of adjudication in the matrimonial proceedings. 72.The issues in dispute raised in the matrimonial proceedings are not matters which this court needs to adjudicate for the purpose of the present action. In issue in the present case is whether or not the Father in fact formed such understanding of the circumstances, be it rightly or wrongly, and acted upon that in forming his testamentary intention accordingly. Further evidence of the statement or record of such alleged incidents came about after the making of the Alleged Will. In view of the hostility between the Father and Cheung manifested by the divorce proceedings, there is all the more reason for believing that the Father had no reason to change his mind in respect of the disposition of his assets formed at the time of the Alleged Will by the time of his death. 73.Likewise, the Father’s concern about his health was very much his perception, though he did describe instances of discomfort and, as the evidence reveals, the Father had health concerns such as chronic bronchitis, blood sugar level, cholesterol level and uric acid level as well as insufficient antibodies at the time. 74.All those, as the Father himself explained in the Alleged Will, led him to make the Alleged Will at the time. That the Father would favour the Son 75.The evidence of the Son is that the Father had actually mentioned to the children about his intention to leave his assets to the Son even when they were still young. This is disputed by Cheung, but the personal knowledge basis for such dispute is not entirely clear. The Son said so as a matter of his personal knowledge acquired over a long period of time well before Cheung entered into the picture. Apparently, Cheung sought to paint the picture that the Father did not consider the Son as industrious and dutiful. 76.The dispute as to whether, as the Son alleges, the Father was a traditional Chinese favouring son in succession is not crucial. Nor is the allegation of Cheung about the Father’s discontent with the Son. The fact, as the Father explained in the Alleged Will, was that he and the Mother never cared to separate their respective assets. Notwithstanding that, he made clear:
77.In other words, the Father agreed in 2006 to the Mother’s bequest of the assets under her name, whether or not they were beneficially all hers, to the Son. Emphasis was placed on the fact that he was their only son. As for the Alleged Will in 2010, the Father did not simply make the Bequest. With the Bequest came the Father’s expectation that his only son would make good use of the inheritance to lead an industrious life and would take care of his grandchildren. The significance of the Father’s stance and emphasis in these respects in both 2006 and 2010 cannot be ignored. 78.Traditional thought aside, the Father cared for his children. The Father, in his own words, footed the bill for the Son (and the youngest daughter)’s overseas education. Amongst the evidence are that of instances and photographs of family gatherings both in Hong Kong and overseas. The Daughters do not dispute the Bequest or the Father’s intention behind it. The Father also expressed his wish that the Daughters would advise the Son in the event he misbehaved after the succession. The Daughters supported the Son in these proceedings. Objectively, the Father and the children, and the children among themselves, got along sufficiently well as a family. As mentioned, the Son never hid the fact that there were instances of friction and argument between him and the Father. I am impressed by the evidence that they were instances only to be expected in the normal course of family interactions. 79.On the contrary, the Father himself stated in his Form E in the divorce proceedings that:
80.In other words, the way the Father viewed the matter by the time of the divorce proceedings was that Cheung was instrumental to the breakdown of the family harmony. That in fact aligned with his scepticism about her already expressed in the Alleged Will. As mentioned, after the Son had moved out of the Family Home, according to the Son, to avoid further clashes with Cheung, the Father subsequently requested and the Son agreed to move back to live with him. 81.It should be noted that the Father also stated in the Alleged Will his good wish that the children should respect Cheung as the stepmother, if she chosen to stay at the Family Home, as well as should support her, if she could not manage to support herself, in the future. The premise for the Father to express such hope was consistent with his intention that Cheung was not supposed to share his assets upon his death. 82.I am left with no doubt about the intention of the Father behind the Bequest in favour of the Son in the circumstances. Rhetorically 83.Counsel for the Son also argues that the question of the intention of the Father may also be approached rhetorically. Construing the Alleged Will in context and as a whole, and in view of the principle which the Father had vowed to live by since his acquaintance with Cheung, I see the sense of such argument. 84.In the Alleged Will, the Father referred to his prenuptial agreement with Cheung. Essentially, the couple’s consensus was to retain their financial independence so that their individual assets would go to their respective children. The same principle by which the Father had lived since the marriage to Cheung, and the intention to stick to that, drove him to come up with the terms of the disposition in the Alleged Will. 85.To recapitulate, the Father wrote in the Alleged Will:
86.Essentially, the prenuptial agreement was an oral consensus after discussion without writing. However, when it came to his case in the divorce proceedings, the Father produced a written prenuptial agreement apparently signed by him and Cheung (by stamping), and dated 2 November 2006 (“the Alleged Written Prenuptial Agreement”). 87.The Alleged Written Prenuptial Agreement contained, amongst others, the following terms:
88.Essentially, the above document contained, amongst other things, the following features and terms:
89.Whilst the Alleged Written Prenuptial Agreement was not attested by witness, 3 persons have made statutory declarations in Hong Kong on 26 January 2016 verifying their witnessing of the signing / stamping of the document. The witnesses were Mr Tsang Sai Ping (曾世平), Mr Wong Ka Ngai (黃嘉毅) and Madam Cheung Ling (張玲) (the “Statutory Declarations”). 90.There is clearly contradiction in the Father’s case on whether the alleged prenuptial agreement with Cheung was recorded in writing. Cheung denies the Alleged Written Prenuptial Agreement. She alleges that it was a fabrication for the purpose of the divorce proceedings, and her signature on the document was forged by copying from that in the marriage certificate. 91.Issue taken in respect of the Alleged Written Prenuptial Agreement by way of Cheung’s affirmation and witness statement was as brief as denial. The same was not put to the Son in cross examination with the necessary specificity, if at all. Put in issue this way, there is no way of properly and fairly trying such factual dispute. 92.Without a view to bringing this specific factual dispute to a positive finding, this court notices the following features of the alleged agreement. 93.First, it was less than a year between their acquaintance and decision to get married. There is no suggestion or evidence in respect of any other arrangement regarding their assets and properties not only in Hong Kong but also, and perhaps more relevantly, in the Mainland. For the Father with his background, and the couple in their respective circumstances then, to perceive any ramification of their marriage on their assets and properties is inherently probable. 94.Second, and related to the circumstances discussed in the preceding paragraph, the family composition and circumstances of the Father and Cheung afforded both of them sufficient reasons for addressing the question of assets and property rights as well as legal obligations consequential upon their marriage. This was so, particularly when Cheung was a Mainlander with children in the Mainland, and both she and the Father respectively owned properties in the Mainland. In other words, consensus according to the agreement on its face should serve both sides’ interest. 95.Third, whilst the essence of the agreement was that neither side would be entitled to share the other’s assets and properties in their own names or by their respective children, the same, according to the Alleged Written Prenuptial Agreement, would not apply to any child to be born out of their marriage. In other words, the separation of assets and properties was agreed but not regardless. The probability that the Father would care to craft the terms of a fabricated document this way for the purpose of the divorce proceedings is inherently low. 96.Fourth, Cheung also questions the Statutory Declarations. Indeed, the makers of those documents were not heard. However, contrary to what counsel for Cheung submits, I do not see inherently implausible feature in these documents. If anything, the way that they were written out appeals a reasonable reader as simple and straightforward, instead of a mere clone of one version dictated to them. 97.All the above being said, I again stress that I am not actually setting out to bring this specific factual dispute to a conclusion and finding. For the same reason, I would not set out to making a finding on the basis of what counsel for the Son suggests in his submission to be possible explanation for why the Father would state in the Alleged Will that the alleged prenuptial agreement was oral rather than written. Such factual dispute would have been expected for the purpose of the divorce proceedings, which failed to get to that stage before the passing of the Father. The circumstances, I find, are such that resolution of such dispute for the purpose of the present action is not really necessary. 98.The Son does not require to establish the alleged written agreement to evidence the existence of such consensus between the Father and Cheung. In the Alleged Will itself, the Father consistently referred to that as the principle he had lived by since the marriage to Cheung in 2006. Whether he was right or wrong in respect of the existence of the written agreement, he was adamant about the existence of such consensus. What needs to be established are circumstances supporting that it was without doubt the testamentary intention of the Father to leave his assets to his children only, including the Bequest in favour of the Son. In my judgment, the circumstances, both within and extrinsic to the Alleged Will, suffice. The Condition 99.Before turning to the contention of Cheung with reference to the Condition, one should note that her contention would be capable of reasoning only if the Alleged Will was intended to contain the testamentary intention of the Father. Emphasis on the phrase “此囑無效” as the result of the Condition would have no meaning if, as Cheung argues, the document contains mere statements of his prayer or hope. Statements of prayer or hope do not give rise to any issue of validity or effect which, as Cheung contends, could hinge upon the satisfaction of the Condition. 100.In my judgment, what the Condition says indeed set out the Fathers’ expectation about the Son after the latter’s succession to his assets. However, that did not suggest the Father’s intention to prevent the Bequest from taking effect upon his death. Such expression of hope can only give rise to moral obligation. As mentioned above, the Father’s hope was a composite one involving not only the Son but also the Daughters. The Father certainly hoped that the Son as his successor would make good use of the inheritance. At the same time, he hoped that the Daughters would advise the Son. The Father also hoped that all the children would still respect Cheung as their stepmother and support her if she did not manage. So expressed together, these matters would not elevate from being moral to becoming legal obligations on the part of the Son. 101.Even assuming for argument’s purpose that such expression of hope of the Father is construed as legal obligations on the part of the Son, that would not mean that the disposition as per the Bequest would not take effect upon the Father’s death. Be it construed as conditions precedent or subsequent, it suffers from uncertainty, if not absurdity. The Son was intended by the Father to make use of the inheritance for the discharge of such obligations. It makes no sense to expect the Son to do so the other way round. Further, if the validity or effect of the Bequest would hinge upon the discharge of such obligations on the part of the Son, then whether and when that happens as well as whether the Daughters or any one of them would be the judge of that are also uncertain. Insofar as the obligations are said to be legal, as opposed to moral, are concerned, they would be unenforceable for being uncertain. 102.Further, if the Father was so minded, as Cheung contends, to effectively cancel the Bequest because of the Condition, the consequence of intestacy would follow. In case of intestacy, Cheung would become entitled to half of the assets of the Father. Construing the terms of the Alleged Will this way, contrary to the other probable (if not more probable) construction discussed above, will directly contradict the principle which the Father had lived by and reiterated in the Alleged Will, namely that his assets must go to his children only instead of Cheung. Therefore, it is against established principle to refrain from construing the bequest of a testator to fail so as to end up in intestacy. It offends such principle even more when intestacy will lead to results in direct contradiction to the express intention of the testator. The safekeeping of both versions of the Alleged Will and their disclosure 103.The Son contends that the way both versions of the Alleged Will were stored aligns with the intention of the Father that the documents should be kept for their purpose instead of being treated casually. 104.The fact shows the Father’s meticulousness in arranging the safekeeping of the documents. The Father cared to hand the Ngai Version of the Alleged Will to Ngai immediately before her departure from Hong Kong to Taiwan where she was married and resided. He stated his plan to do so in the Alleged Will. The Ngai Version was then put inside a manila envelope, and handed over to Ngai at the Hong Kong International Airport on 24 January 2010 (i.e. just 2 days after the document’s execution) before she boarded the flight back to Taiwan. The Father even cared to take photographs depicting his handover of the envelope, with its content taken out, to Ngai at the airport. That was a conscious and overt act on his part for record and evidence. 105.According to the Son, which Cheung had no personal knowledge to dispute, the Home Version of the Alleged Will was found kept on a high shelf in a box inside a secured cabinet in the Father’s own room in October 2017. There is no dispute that the Father did not keep any safe deposit box. Inside the same box in the cabinet were also the title deeds, the Alleged Prenuptial Agreement and the documents relating to the divorce proceedings. The significance attached to these documents being put together for secured storage is in the circumstances a matter of straightforward deduction. 106.Cheung takes issue as to the Disclosure Provision in the Alleged Will set out above. She argues that the provision shows no testamentary intention on the part of the Father because he appeared to have no intention to immediately dispose of his assets by the document. 107.I do not agree. 108.The Disclosure Provision is to be construed together with the other terms, particularly those of the dispositive part, of the Alleged Will as a whole. As such, the provision per se could not negate the clear expression of the intention behind the Bequest in favour of the Son. 109.A will, including its dispositive part, operates upon the death of the testator, not as and when it is disclosed. The fact that there is specific provision regarding its disclosure does not affect its validity. Nor does that affect the effect of the will, if it does provide for the bequests to take effect upon the death of the testator. 110.Reading the Disclosure Provision in context, one can only tell once again the intention of the Father to avoid family dispute arising out of the question of succession of his assets upon his death, which is consistent with what drove him to make the Alleged Will in the first place. Which version of the Alleged Will to propound 111.Following from the above, there comes the issue raised by Cheung, which of the two versions of the Alleged Will the Son is propounding. Counsel for the Son argues that this is red herring in the circumstances. 112.A will is a document which contains statements regarding the disposition of a person’s property on death. Such statements are contained in pages 7 to 8 of the Alleged Will. The pages of writings of the Father prior to such statements are precatory or recital in nature. The terms of the operative dispositive parts of the both versions of the Alleged Will are in fact identical. 113.If anything, the discrepancies spotted from the two versions, counsel for the Son argues, tend to lend weight to the adoption of what literally appeared to be the accurate and probably the later one of the two in existence. He refers to the following instances in the Ngai Version:
In the Home Version, the above underlined parts, which clearly contained typographical errors, were all corrected and read as:
114.Counsel therefore argues that it is more probable than not that the corrected and accurate one came to exist after the one containing those mistakes. I can see the logic of counsel’s argument. On this basis, the Son asks that if choice between the two versions is indeed necessary, the Home Version should be propounded as the one more accurately setting out the Father’s intentions. 115.All the circumstances considered, including those discussed above, I find that both versions of the Alleged Will no doubt embody the same testamentary intentions of the Father in identical terms, including the Bequest. In terms of that, it makes no material difference between recognising which version of the Alleged Will as the Father’s will. The circumstances were such that the choice is not strictly for the last of the two versions of the Alleged Will to prevail. Rather there is much good sense to recognise the more accurate of the two versions, which appeals to me to be what the Father would have intended. Hence the Home Version as the last will of the Father for the present purpose. This is further subject to the question of rectification discussed below. Rectification 116.Section 23A(1) of the WO provides that:
117.Counsel for the Son refers to the following principles in Marley v Rawlings [2014] UKSC 2 which equally apply in Hong Kong for the purpose of the similar provision:
118.In the Alleged Will, immediately following the Bequest in favour of the Son, the Father stated:
119.In other words, right after the Bequest in favour of the Son, the Father stated that all his assets would go to his children. The literal inconsistency appears. Hence the rectification sought. 120.In my judgment, the Father cannot possibly be taken to intend the inconsistency literally appearing. Read as a whole, the statement that all his assets would go to his children, in my judgment, was either a reiteration of the principle by which he had lived since his marriage to Cheung or alternatively his intention in respect of his assets other than those under the Bequest just made. This, in my judgment, is in line with the context and circumstances of the Alleged Will. This is also in line with the presumption against intestacy as discussed above. 121.Accordingly, the Son seeks to rectify by qualifying this line in the Alleged Will by inserting the phrase ‘除了我以下列名的財產’ so that the complete line so rectified will read as:
122.I am satisfied that the rectification sought is justified as being in line with the testamentary intention of the Father, and is necessary to clear any doubt in the administration of the estate of the Father. Administrator of the estate of the father 123.The Son seeks be appointed as the sole administrator for administration with the will annexed, that being the Alleged Will now rectified and propounded. He also proceeds on the basis of potential partial intestacy insofar as any assets of the Father other than the Bequest is concerned. To such extent, all the parties in the present action would be potential beneficiaries. 124.Section 35(1) of the Probate and Administration Ordinance (Cap. 10) (“the PAO”) provides, amongst others, that:
125.Administration granted pursuant to section 35(1) is granted in accordance with the order of priority set out in r19 of the Non-Contentious Probate Rules (Cap. 10A) (“the NCPR”). It provides, amongst others, that:
126.Where a person dies wholly intestate, the order of priority entitled to a grant of administration pursuant to r21 of the NCPR is the surviving spouse firstly followed by the children of the deceased. 127.However, section 36 of the PAO provides the court with the residual discretion to grant administration to a party other than in accordance with the order of priority:
128.Whether it is necessary or convenient to appoint a particular person as administrator is determined according to the circumstances of the case and common sense: see Re Estate of Loo Che Chin [2013] 2 HKLRD 739 at 743. 129.The expeditious and economical administration of the estate is always one of the objects: see Re Estate of Loo Che Chin (above) at 744. The relationship between candidate and the deceased during the latter’s lifetime is also relevant: see Re Estate of Ho Chi Yin (above) at 778-779. 130.The court may pass over an individual if there is a breakdown of relationship, hostility or loss of mutual trust between him as the potential administrator and the beneficiaries that may cause difficulty in the administration of the estate: see Re Estate of Loo Che Chin (above) at 744; Hanna Chung Ming Leung v. Leung Leung [2021] HKCFI 630 at §84. Bad character and conflict of interest are also grounds, which may be judged by reference to past conduct in litigation including proceedings to propound the will: see Re Estate of Ho Chi Yin (above) at 779. 131.Considering the circumstances of the Son, including his education, background and interest in the estate of the Father according to the Alleged Will (as rectified) as well as all the adverse observations and findings about Cheung, I have no doubt that not only the Son is the preferable candidate but it would also be disastrous to leave the administration of the estate of the Father in the hands of Cheung. It is also noted that not much, if at all, is said on behalf of Cheung in this respect. As for the Son, he has the Daughters’ support. Order 132.I therefore declare that the Alleged Will (ie the Home Version appended hereto[7]) without doubt embodies the testamentary intentions of the Father, and is proved in solemn form. I also grant the rectification sought in terms as set out in §121 above. 133.I also order that the Son, as he is so entitled, be authorised to apply for grant of Letters of Administration of the estate of the Father (with the Alleged Will as propounded and the order herein annexed). Costs 134.The principles governing costs have been set out in Nina Kung v. Wang Din Shin (No. 2) (2006) 9 HKCFAR 800 at §§10-12, 15 and 17-19. The summary of them by counsel for the Son is adopted below. 135.Costs are within the discretion of the court. The general rule is costs should follow the event. This is subject to exceptions. The first exception is where the conduct of the testator is the sole or dominant cause of the litigation, in which case costs may be ordered to be paid out of the estate. The second exception is where the circumstances reasonably led to an investigation into the will’s invalidity, in which case the costs order may be one of no order. 136.The following circumstances fall within the first exception:
137.As for the opposing party, he is expected to have made proper enquiries before taking his stance in the legal proceedings. Further, if his opposition goes beyond putting the proponent to strict proof of the validity of the will and takes the form of hostile litigation, the general rule of costs following the event is likely to follow. Instances include advancing a positive case of forgery or fraud. 138.On behalf of Cheung, it is submitted that this case falls within the first exception. I disagree. 139.The Father left behind two versions of the testamentary script. However, he obviously did not do so recklessly and for no reason. Instead of planting the seed for family dispute, the Father cared to do, as this court observes from the outset, what is seldom seen in similar dispute, namely to write his own recital for the will so as to explain his intention precisely to prevent family dispute after his death. What happened in the present case would not have happened the way it did but for the stance and assertions of Cheung. Further, the two versions of the Father’s testamentary script do not differ in respect of the dispositive part, which is the relevant part for the purpose of the relief in these proceedings. Nor does the Alleged Will contain real ambiguity. 140.Through counsel, the Son accepts that this case arguably falls within the second exception, but argues that the exception is not really engaged. 141.The hostile litigious nature of these proceedings, the Son argues, originated from Cheung. Indeed, what she advanced in the trial exceeded her pleaded stance of putting the Son to proof. Positive assertions include allegation of forgery or fraud concerning the marital agreement between the Father and her. As to how she conducted as witness at the trial, the above discussion refers. Further, Cheung failed to make any proper enquiries at all with the Son prior to launching her opposition. She did not, for example, query why he was propounding the Will, when she was so convinced that he would have engaged lawyers to draft a will or why he was relying on the Marital Agreement, which, in her knowledge, was a forgery. 142.All circumstances considered, I am satisfied that the application for the costs order proposed by the Son should be acceded to. Hence an order that the costs of the Son in this action be paid by Cheung personally without recourse to the estate of the Father. Costs shall be taxed if not agreed. This costs order is nisi, and shall, in the absence of application in 14 days for variation, become absolute without further order.
Mr Hugh Kam, instructed by Tang and So, for the plaintiff Mr Billy Poon, instructed by Raymond Chan, Kenneth Yuen & Co, for the 1st defendant The 2nd to 4th defendants were not represented and did not appear Appendix [1] Parts of the various account numbers are redacted by the court solely for the purpose of this judgment. [2] The personal identification numbers are redacted by the court only for the purpose of this judgment. [3] Core Bundle, p.52. [4] Core Bundle, p.54. [5] Core Bundle, p.44. [6] Core Bundle, p.46. [7] The personal identification details and bank account numbers are partly redacted by the court solely for the purpose of this judgment. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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