Lau Po Sheung v. Lo Yuen Ching Cindy

HCAP 4/2020

[2023] HKCFI 1850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2020

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JUDGMENT

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INTRODUCTION

1.This is the trial of a probate action on affidavit under Order 76 rule 12 of the Rules of the High Court (Cap 4A, Laws of Hong Kong) (“the RHC”) pursuant to the order of Madam Justice Au-Yeung dated 23 December 2022.

BACKGROUND

2.The plaintiff is the widow of the Deceased who passed away on 10 November 2019.

3.The defendant was a “god-daughter” (契女) of the Deceased.

4.The Deceased had made a total of 3 wills altogether, namely:

(1)  a will dated 22 August 2013 (“the 2013 Will”), in which the Deceased, inter alia:

(a)  appointed the defendant to be his executrix and trustee of the will;

(b)  gave, devised and bequeathed all his real and personal properties to the defendant upon trust to sell, call in, and convert the same into money and after payment of his debts, funeral expenses, testamentary and administration expenses and taxes, to hold the residuary estate upon trust: (i) for herself if she survived the Deceased by 28 days; but (ii) otherwise for her children in equal shares;

(2)  a will dated 29 April 2015 (“the 2015 Will”). The 2015 Will, apart from containing basically all the terms of the 2013 Will, also:

(a)  included a declaration that the Deceased had already given and disposed certain assets to the plaintiff during their marriage; and

(b)  directed that none of the property out of his estate should be paid or given to the plaintiff whether or not they were still married at his death;

(3)  a will dated 10 February 2018 (“the 2018 Will”), by which the Deceased:

(a)  revoked all wills and testamentary dispositions previously made;

(b)  appointed the plaintiff to be his executrix and trustee of the 2018 Will; and

(c)  gave, devised and bequeathed all his real and personal properties to the plaintiff absolutely subject to the payment of his debts, funeral and testamentary expenses.

5.On 9 January 2020, probate of the 2015 Will was granted to the defendant (“the Grant”).

6.The plaintiff then commenced the action herein and sought, inter alia, to have the Grant revoked.

7.At the beginning of this trial, this Court granted leave for the plaintiff to amend the Writ of Summons and the Statement of Claim so as to include a claim that the 2018 Will be pronounced in solemn form of law[1].

8.In the defendant’s Defence which was filed on 26 June 2020, it was alleged, amongst other things, that the 2018 Will is invalid because the Deceased did not know nor approve the contents thereof. Alternatively, the 2018 Will is invalid because the Deceased lacked testamentary capacity when he executed it.

9.Be that as it may, the defendant subsequently decided not to proceed with her defence of this action. As a result, by the consent of the parties, and upon the defendant’s undertaking, among other things, not to take any steps in opposing the plaintiff’s application in propounding the 2018 Will in solemn form, Au-Yeung J ordered on 23 December 2022, inter alia, that:

(1)  The Grant be revoked;

(2)  There be directions for trial on affidavits under Order 76 rule 12 of the RHC;

(3)  The defendant’s attendance at the trial be excused.

10.Her Ladyship further directed on 17 January 2023 that the affidavit evidence of the plaintiff’s witnesses shall be adduced without oral evidence.

DISCUSSION

11.It is now trite that the fact that the parties had reached a compromise does not free the plaintiff from satisfying the Court that the 2018 Will was the last and valid will of the Deceased: Kan Mui v Lai Chung Hei & Others (HCAP 7/2001, unreported, 25 February 2008), at [8] and [15].

12.In this regard, I am satisfied that, on the face of the 2018 Will, all the procedural requirements under the Will Ordinance (Cap.30, Laws of Hong Kong) have been complied with.

13.It is noted that in her Defence, the defendant alleged that the Deceased did not know nor approve the contents of the 2018 Will and that he lacked testamentary capacity when he executed it.

14.In this regard:

(1)  The Deceased’s solicitor, Mr Lee Ning Kei, had by affirmations explained in details the steps that he had taken for the purpose of confirming that the Deceased, before his execution of the 2018 Will, fully understood the nature and effect of the testamentary document which he was going to sign;

(2)  Dr Chau Hok Ping, the Deceased’s family doctor, had made an affirmation and confirmed that he had done an assessment of the Deceased on the day of the execution of the 2018 Will and he was satisfied that the Deceased was mentally capable of managing and administering his affairs and properties and of making a will. He also stated that he was present when the Deceased executed the 2018 Will even though he was not asked to sign as a witness;

(3)  Dr Li Derek Seung Yau, a specialist in Psychiatry, also affirmed that he was satisfied, upon an assessment of the Deceased conducted on 27 September 2018, that the Deceased had full mental capacity to make a will at the material time.

15.In the circumstances, I am satisfied that the 2018 Will is a valid will and was the last will of the Deceased.

DISPOSITION

16.I therefore make an order that the 2018 Will be pronounced in solemn form of law.

COSTS

17.I make no order as to the costs of the action.

Mr Lincoln Cheung and Mr Henry C. Y. Leung, instructed by K Y. Woo & Co, for the plaintiff

The defendant’s attendance was excused