Tian Hongmei v. Zhang Wei and Others
Read the full judgment text of CAMP 30/2024 on BabelCite. This Court of Appeal judgment was delivered on 22 May 2024.
1. This is a renewed application by the plaintiff for leave to appeal against the decision of Deputy High Court Judge Au Yeung (“Judge”) given on 18 October 2023 (“Decision”) refusing her application for summary judgment. [1] The plaintiff’s previous application for leave to appeal was refused by the Judge on 29 January 2024 (“Leave Decision”). [2]
Cited by 3 cases · Cites 6 cases
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CAMP 30/2024, [2024] HKCA 453 On an intended appeal from [2023] HKCFI 2675 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 30 OF 2024 (ON AN INTENDED APPEAL FROM HCAP NO. 29 OF 2022) ________________________
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____________________ JUDGMENT ____________________ Hon Chu VP (giving the judgment of the Court): A. Introduction 1.This is a renewed application by the plaintiff for leave to appeal against the decision of Deputy High Court Judge Au Yeung (“Judge”) given on 18 October 2023 (“Decision”) refusing her application for summary judgment.[1] The plaintiff’s previous application for leave to appeal was refused by the Judge on 29 January 2024 (“Leave Decision”).[2] 2.Having considered the documents filed by the parties and their respective submissions, we consider that it is appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A (“RHC”). B. HCAP 29/2022 3.The plaintiff is the surviving spouse of Cha Mou Sing Payson (“Deceased”) who passed away on 6 November 2020. They were married on 29 December 2017 in New Zealand. 4.The 1st defendant was a director of several companies owned by the Deceased. The 2nd defendant was the Deceased’s secretary. The 3rd defendant is the elder sister of the Deceased. The 4th defendant is the adopted daughter of the Deceased. 5.The 1st, 2nd and 3rd defendants were named as executors of the Deceased’s estate (“Estate”) in a will (“Purported Will”) purportedly signed by the Deceased on 4 November 2020, i.e. two days before his death. 6.On 18 December 2020, the 1st to 3rd defendants applied for a grant of probate in respect of the Purported Will (HCAG 015821/20). The plaintiff entered a caveat (HCCA 764/2021) in respect of the Estate on 23 February 2021. The 1st to 3rd defendants refused to withdraw their probate application despite the demands made by the plaintiff. 7.On 12 August 2022, the plaintiff issued the writ in the probate action below. The Statement of Claim was filed on 9 September 2022. C. The plaintiff’s pleaded case 8.The plaintiff’s pleaded case as appeared by the Statement of Claim may be summarised as follows. 9.In August 2020, the Deceased was diagnosed with bile duct cancer. He went to the United States for treatment, accompanied by the plaintiff. The Deceased’s health deteriorated in late October 2020. On 2 November 2020, he began receiving hospice care at his house in the United States (“House”). 10.On 4 November 2020:
11.The plaintiff had recorded the process of the alleged execution of the Purported Will in a video (“the Video”). 12.The operative parts of the Purported Will dealing with the disposition of the Estate were left blank. The only consequential provision is clause 3 appointing the 1st to 3rd defendants as executors of the Estate. 13.There is no dispute that the Purported Will was also executed by Dr King, Siu and Karen as attesting witnesses.[5] 14.The plaintiff’s case is that the Purported Will is invalid in that:[6]
15.The plaintiff does not seek the grant of letters of administration of the Estate to herself. Instead, the Statement of Claim referred to a document dated 9 July 2020 and signed by the Deceased (“July Document”) and pleaded the following in paragraph 12:
16.The Statement of Claim sought the following relief:[7]
17.It was also pleaded that the 4th defendant was joined as a party for the purpose of ensuring that she, as the Deceased’s adopted daughter and a potential beneficiary of the Estate, would be bound by the outcome of this action.[8] D. The summary judgment application 18.On 26 September 2022, shortly after the filing of the Statement of Claim, the plaintiff took out a summons for summary judgment (“Summons”). In her supporting affirmation, the plaintiff stated that the Video puts it beyond doubt that the Deceased was unresponsive or unconscious, that the Deceased clearly did not know he was being asked to sign a will, and that the Purported Will is plainly invalid.[9] Siu also filed two affidavits in support of the Summons. 19.The Summons was opposed by the 3rd defendant on the following grounds:[10]
20.While the 1st and 2nd defendants indicated in their respective Acknowledgements of Service that they did not intend to contest the proceedings,[11] each of them has filed affirmation evidence in opposition to the Summons on behalf of the 3rd defendant.[12] The other individuals who filed affirmation evidence on behalf of the 3rd defendant are a solicitor involved in preparing the earlier drafts of the Deceased’s will,[13] and the Deceased’s two younger sisters who visited the Deceased at the House in the afternoon of 4 November 2020.[14] 21.From the evidence filed on behalf of the 3rd defendant, there is a dispute over the plaintiff’s version of events on 4 November 2020 and her case on the mental condition of the Deceased at the time of the execution of the Purported Will.[15] For example, it is the evidence of Karen (who was one of the attesting witnesses of the Purported Will) that:
22.The 4th defendant has indicated that she would adopt a neutral stance in respect of the validity of the Purported Will, and reserve her right to respond to the matters pleaded in paragraph 12 of the Statement of Claim as and when those matters become live issues for determination.[18] She was excused from attending the substantive hearing of the Summons.[19] E. The Judge’s decision 23.The Judge disposed of the summary judgment application on one ground alone. He was of the view that the “piece-meal” approach adopted by the plaintiff is wrong and against the well-established principles as set out in Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 and Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148. The Courts in those cases held, among others, that:
24.The Judge’s application of these principles to the present case is encapsulated in [48] to [51] of the Decision as follows:
25.The Judge concluded that the plaintiff’s claim, as it now stands, is defective in that it has not pleaded all the necessary issues, and the Summons should be dismissed. 26.With a view to facilitating discussions among the parties on their disputes and the further conduct of the case, the Judge directed the parties to agree on the directions to be sought for the future conduct of the present case and extended time for the 3rd and 4th defendants to file and serve their respective Defence until further order.[20] F. The plaintiff’s intended grounds of appeal 27.It is trite that leave to appeal shall not be granted unless the Court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard. 28.The plaintiff advances two grounds of appeal in the draft notice of appeal as follows (respectively “Ground (1)” and “Ground (2)”):
G. Our reasons for decision
29.In a nutshell, Ground (1) argues that even if there are other issues concerning precisely what grant the Court should make ultimately, there is no reason why, given the right facts, the Court is powerless to summarily pronounce against a plainly invalid will, particularly when Order 14 is indisputably applicable to probate actions.[21] 30.It was well established in Li Cheong and Choy Po Chun that all those parties who have rival claims in a probate action should advance their claims “simultaneously” so that the probate court could adjudicate on them in a judgment which would bind all rival claimants “once and for all”, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly. This is the basis upon which the Judge concluded that the “piece-meal” approach adopted by the plaintiff, and in particular her “vague” stance on the July Document, is wrong. 31.The plaintiff seeks to argue that Li Cheong and Choy Po Chun are distinguishable as neither of them concerns the situation in the present case where a plaintiff merely claims for a pronouncement against the validity of a purported will without seeking a grant of representation.[22] The Judge pointed out in [6] and [7] of the Leave Decision that the principles articulated in Li Cheong (at [42]) and Choy Po Chun (at [16]) are of general application in probate actions. We agree. We do not consider that a valid distinction can be drawn between the two cases and the present case. There is nothing in Li Cheong and Choy Po Chun to suggest that the principles stated above only apply to cases where a party seeks to prove the will in solemn form or a grant of representation, but not where a party seeks to pronounce against a will. As submitted by the 3rd defendant, what is important is the nature of a probate action which underlines the applicability of these principles does not turn on which party first instituted the probate proceedings in relation to where they stand on the validity of a disputed will.[23] 32.In our view, the Judge is correct in holding that the plaintiff has failed to plead all the necessary issues, particularly in relation to the July Document, in the Statement of Claim. In the pre-action correspondence, the plaintiff had indicated that she would seek a declaration that the Deceased died intestate and a grant of letters of administration of the Estate to herself.[24] The Statement of Claim, however, merely pleads that the plaintiff reserves her right to contend that the July Document is a duly executed will under section 5(2) of the Wills Ordinance. Evidently, the plaintiff has not pleaded the entirety of her case. As a result, it is not possible to discern from the Statement of Claim whether her position is that the Deceased died with a will, or that he died wholly or partially intestate. The plaintiff’s approach clearly falls foul of the requirement that rival claims should be advanced simultaneously in a probate action (Li Cheong at [42]). 33.We also agree with the 3rd defendant[25] that the plaintiff’s failure to plead her case on the July Document is at odds with the requirement under Order 76 rule 5 of the RHC that a party to a probate action must describe “any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge”. On its face, the July Document relates, or at least potentially relates, to the same subject matter of this probate action, i.e. the Estate of the Deceased. Absent a proper plea by the plaintiff on the July Document, it would not be possible for the Court to perform the inquisitorial function and to make a positive finding as to whether the Deceased died intestate, as explained in Choy Po Chun at [16]. 34.The plaintiff is at pains to emphasise that Order 14 of the RHC is applicable to probate actions (relying on Re Lau Siu Wah [2005] 1 HKC 364 at [19]).[26] While this is so, summary judgment is seldom likely to be appropriate in a probate action. In Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, [2023] HKCA 1177 at [2], this Court has observed that a summary judgment application in a probate action should be approached with care. 35.The same point was made by the learned editors in Tristram & Coote’s Probate Practice (32nd Ed) at paragraph 38.44 (the corresponding passage in an earlier edition was cited with approval in Choy Po Chun at [19]) :
36.The case of Goss-Custard v Templeman [2018] EWHC 2476 (Ch) was referred to in the footnote to the above passage. In that case, Master Shuman refused to grant summary judgment for an order pronouncing against the 2008 will of the late Lord Templeman on the ground of lack of testamentary capacity (at [1]-[2]). It was acknowledged in [56] of the decision that summary judgment in a probate claim is “unusual, although possible”.[27] 37.Ultimately, whether summary judgment should be granted in a particular probate action must depend on the individual circumstances of the case and the way in which the parties pleaded their case in the proceedings. In this regard, it is trite that in an application for summary judgment, the statement of claim must be good and complete in itself: Tan Khay Chuen & Another v Ko Ping Shun Benson, CACV 238/2015, 8 July 2016, at [23]; see also Hong Kong Civil Procedure 2024 vol 1 at [14/1/5]. In this case, the Judge has found that the Statement of Claim is defective in the sense that it has failed to plead all the necessary issues, including the plaintiff’s case on the July Document. The plaintiff’s reliance on the applicability of Order 14 of the RHC to probate actions does not take her position any further. 38.The plaintiff also draws assistance from the underlying objectives in Order 1A rule 1 of the RHC and submits that the 3rd defendant should not be permitted to pursue a hopeless claim in respect of the validity of the Purported Will and to intermeddle with the administration of the Estate.[28] In our view, the underlying objectives do not detract from the general principles set out in Li Cheong and Choy Po Chun. If anything, the requirement laid down in these cases that all parties in a probate action shall advance their rival claims simultaneously so that a binding judgment could be made once and for all in relation to the same estate serves to achieve finality in litigation and is thus in keeping with the underlying objectives. We are unable to see how the underlying objectives can be achieved on the plaintiff’s approach, which will lead to further litigation on the grant of representation in relation to the Estate in another probate action, especially if no agreement is reached between the plaintiff and the 4th defendant contrary to what was envisaged in paragraph 12.3 of the Statement of Claim. 39.For the above reasons, we are not satisfied that there is any reasonable prospect of success in Ground (1).
40.Ground (2) contends that the Purported Will is plainly invalid and that no triable issues have been raised in respect of the plaintiff’s claims.[29] 41.We do not consider that this ground is engaged given that the Summons was dismissed on one ground alone, namely the defect in the Statement of Claim to plead all the necessary issues: see [45] and [54] of the Decision. The Judge has also made it clear in [51] and [52] that the Court should not adjudicate the matter on a piece-meal basis and that it is inappropriate to express any view on the validity of the Purported Will at this stage. As such, Ground 2 does not arise for consideration.
42.In light of the above, we are not satisfied that there is any reasonable prospect of success in the intended grounds of appeal. Nor are we satisfied that there is any other reason in the interests of justice to grant leave to appeal. Leave to appeal should be refused. 43.As this application is totally without merit, we further make an order pursuant to Order 59 rule 2A (8) of the RHC that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.
44.There is no reason to depart from the usual rule that costs should follow the event. The plaintiff should pay the 3rd defendant’s costs of this application. The 3rd defendant asks for costs to be awarded on an indemnity basis. We do not consider that this application contains any special or unusual feature which would justify the award of costs on a higher basis. We therefore order the 3rd defendant’s costs of this application be paid on party and party basis. 45.Having considered the 3rd defendant’s statement of costs, and taking a broad-brush approach, we summarily assess the 3rd defendant’s costs at HK$ 250,000, which is inclusive of counsel fee.
Mr Bernard Man SC and Mr Thomas Wong, instructed by Deacons, for the plaintiff Mr Ambrose Ho SC, Mr Law Man Chung SC and Mr Tony Chow (solicitor advocate), instructed by King & Wood Mallesons, for the 3rd defendant [3] Affidavit of Siu Wai Ming, [1]. [4] Affidavit of Hiap Chye Sang, [1]. [5] 3rd Affirmation of Tian Hongmei, [24.1]. [6] Statement of Claim, [7]. [7] Statement of Claim, Prayer for relief. [8] Statement of Claim, [11]. [9] 2nd Affirmation of Tian Hongmei, [5]. [10] Decision, [44]. [11] Decision, [18]. [12] Affirmation of Zhang Wei, [1]; Affidavit of Chan Yuen Ping Carmen, [1]; and 2nd Affidavit of Chan Yuen Ping Carmen, [1]. [13] Affirmation of Peter George Brown, [4]-[11]. [14] Affidavit of Lucia May Lee-Cha-Yu, [1] and [14]; and Affirmation of Chou, Priscilla May-Queng, [1] and [4]. [15] Affidavit of Chan Yuen Ping Carmen, [25]-[33]; 2nd Affidavit of Chan Yuen Ping Carmen, [20]-[23]; and 3rd Affirmation of Tian Hongmei, [21]-[24]. [16] Affirmation of Hiap Chye Siang, [14]. [17] Affirmation of Hiap Chye Siang, [16]. [18] Affirmation of Cha Yuin Ling Natalie, [5]-[6]. [19] Decision, [19]. [20] Decision, [57]-[58]. [21] Written Statement of the plaintiff, [8.1] and [12]. [22] Written Statement of the plaintiff, [10]. [23] Written Statement of the 3rd defendant, [11]. [24] Letters from the plaintiff’s solicitors dated 23 February 2022, [6] and dated 8 April 2022, [6]. [25] Written statement of the 3rd defendant, [5]. [26] Written statement of the plaintiff, [3] and [13]. [27] The challenge on testamentary capacity eventually failed after trial: Goss-Custard v Templeman [2020] EWHC 632 (Ch). [28] Written Statement of the plaintiff, [14]. [29] Written Statement of the plaintiff, [8.1]. | ||||||||||||||||||||||||||||||||||||||
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