Angela Chen v. Wai Wai Chen

HCAP 10/2020

[2024] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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REASONS FOR DECISION

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1.At the end of the 2-day hearing on 19 March 2024, I pronounced the following decision:

(1)  I agree with the plaintiff’s (“Angela”) submissions as follows:

(a)  That the Opposed Amendments in relation to the 1739 Action, the Divorce and concealment of documents are to be disallowed on the grounds of collateral attack.

(b)  That the Opposed Amendments in relation to the Gift Documents are to be disallowed on the ground of the defendant (“Vivien”) adopting a position inconsistent with the position adopted in previous proceedings.

(c)  That any plea pursuant to Angela’s Agenda should be disallowed.

(d)  That part of the Opposed Amendments should be disallowed on the ground that they irrelevantly plead reasons to challenge the validity of Mother’s inter vivos transactions.

(e)  That part of the Opposed Amendments should be disallowed for lack of particularity.

(2)  As a substantial number of pleas are disallowed as stated above, leave to introduce the Opposed Amendments should be refused.

(3)  The court will not re-formulate defective proposed amendments for the applicant and it is incumbent on Vivien to make a fresh application for leave to amend (if saw fit).

(4)  For the above reasons, I would disallow the Opposed Amendments.  Vivien is granted leave to file and serve an Amended Rejoinder with the Opposed Amendments removed.

2.Reasons for my decision were reserved, which I now give.

A.  INTRODUCTION

3.By summons dated 30 August 2023, Vivien applies for leave to amend her Rejoinder (“Rejoinder Summons”). 

4.The paragraphs in the latest draft Amended Rejoinder (“DAR”) that Angela opposes (“Opposed Amendments”) and the brief grounds of objections are set out in Angela’s solicitors’ letter dated 14 November 2023 (“Objections”).

5.This is a probate action in respect of the estate of Madam Yang Foo-Oi (“Mother”).  Angela, the elder daughter, seeks to propound Mother’s will executed on 15 February 2008 (“2008 Will”), which left all of Mother’s assets to Angela and appointed her as the sole executrix.  Vivien, the younger daughter, seeks to propound instead Mother’s will dated 27 October 2004 (“2004 Will”) under which there would be an equal division of assets and Vivien would be appointed as a co-executrix.

6.Angela’s opposition to the Rejoinder Summons can be summarised as follows:

(1)  There are extensive pleas in the DAR consisting of steps allegedly taken by Angela after the execution of the 2008 Will to further “Angela’s Agenda”, viz for the purpose of obtaining greater influence or control over Nan Fung and/or obtaining a greater share of Mother’s and Dr Chen Din Hwa’s (“Father”) assets than Vivien.  They contain serious allegations of misconduct against Angela, including repeated allegations of fraud, undue influence and/or breach of fiduciary duties in respect of various post-2008 Will transactions.  Angela submits that these are irrelevant responses to the post-2008 Will acts of Mother on which Angela relies.  Angela relies on the post-2008 Will acts to demonstrate that Mother had repeatedly exhibited valid intent to disinherit Vivien after the 2008 Will.  But Vivien’s miscellany of serious allegations in the opposed pleas challenging the validity of various transactions simply do not impact on the validity of Mother’s expression of intent.  They are scandalous and liable to be struck out.  They are thinly veiled attempts by Vivien to attack the validity of the post-2008 transactions which are not within the scope of this action.

(2)  Further or alternatively, some of these transactions/judgments (or the allegations attacking them) had already been determined by previous courts.  Therefore, Vivien’s pleas amount to a collateral attack abuse.

(3)  Moreover, specifically in relation to the Gift Documents, Vivien is adopting a stance which is inconsistent to the one adopted in previous proceedings, which amounts to an abuse.

(4)  Separately, there are various paragraphs (mainly relating to the 50/50 Agreement) which lack proper particulars such that Angela does not know the case that she is expected to meet.

7.Angela submits that the Opposed Amendments, if allowed, would introduce further irrelevant evidence relating to events post 2008 Will through the Amended Rejoinder.  There will be serious implications on the scope of discovery and the evidence to be given at trial.  A disciplined approach would have to be applied to prevent further abusive and wanton expansion of the issues and evidence to be received at trial, which would only cause wastage, vexation and delay.

B.  RELEVANT FACTUAL BACKGROUND

8.In January 2003, Father told Mother that he had transferred approximately HK$18 billion worth of assets to Vivien (“CHL Exercise”) which, as it transpired, was an exercise to avoid potential estate duty.

9.After discussions in 2003 and 2004, Father decided to distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to Mother.  Disputes later arose as to Vivien’s performance of her transfer obligations.

10.Between 2003 and 2006, negotiations took place between Angela and Vivien over a proposed agreement (“50/50 Agreement”) governing the distribution of Father’s assets under the framework of the Equality Principle.  But those negotiations fell apart.

11.It is Angela’s case that in the course of the negotiation, Vivien repeatedly claimed that the substratum of the 50/50 Agreement had gone after the reversal of the CHL Exercise, a position not shared by Mother.  Further, Vivien had insisted on limited disclosure of past gifts from Father, and the inclusion of a widely drafted waiver clause releasing Angela’s and Vivien’s rights in relation to Father’s assets, even though the 50/50 Agreement was intended to address the distribution of Father’s assets generally, past and future.

12.Vivien challenges the 2008 Will on the following grounds:

(1)  Mother lack testamentary capacity to make the 2008 Will because she allegedly operated under mistaken and delusional beliefs.[1]

(2)  There was no knowledge and approval because of the alleged suspicious circumstances under which the 2008 Will was executed.[2]

(3)  The 2008 Will was procured by undue influence,[3] fraud,[4] and/or fraudulent calumny[5] on the part of Angela.

13.Angela denies these allegations.  Furthermore, Angela pleads that Mother made the 2008 Will in place of the 2004 Will because (1) Vivien did improper things which disturbed the equality of the asset distribution by Father amongst Angela and Vivien; (2) Vivien told Mother previously that she did not want any of Madam Yang’s assets; and (3) Vivien was not willing to sign the 50/50 Agreement.^[6]

14.Among other things, Angela relies on Mother’s execution of legal or formal documents between 2008 and 2014 as pleaded in the Re-Re-Amended Reply (“RRAR”) §§108-127 (“Post Will Acts”), in particular the statements that she made either in the documents themselves or immediately prior to their execution in medical examinations (“Mother’s Statements”).  Angela submits these statements have significant probative value in showing Mother’s testamentary capacity to make, and her knowledge and approval of, the 2008 Will (“Relevant Issues”).  Mother’s Statements represent Mother’s true view all along, and are evidence of Mother’s intention at the time of the 2008 Will.

15.Mother’s Statements include the following:

(1)  In a medical examination on 16 June 2008 for the purpose of executing documents for the Intended MIP Proceedings,[7] Mother stated that she believed Vivien had done improper things which affected the equality of the wealth distribution.[8]

(2)  On 26 June 2008, Mother executed a trust deed appointing Angela as trustee of Mother’s assets (“2008 Trust Deed”), and stated in the medical examination prior to execution her reasons for changing her will in 2008, namely Vivien had taken more assets from Father, she had told Mother that she did not want Mother’s assets, and Vivien was crooked in her mind.[9]

(3)  On 17 September 2008, Mother executed a Chinese declaration (“Will Declaration”) in which she reaffirmed the 2008 Will and her testamentary wishes, and stated, inter alia, she was not bequeathing any asset to Vivien because she had indicated that she did not want Mother’s assets.[10]

(4)  On 12 December 2012, Mother executed various documents (“Gift Documents”) consisting of (i) a Deed of Gift; (ii) a Gift Declaration; and (iii) an Irrevocable Power of Attorney (“2012 POA”), which effect was to gift all of Mother’s assets to Angela.  In the Gift Declaration, Mother declared that she made the gift to achieve early completion of the bequest under the 2008 Will, and to avoid unnecessary disputes.[11]

(5)  On 2 May 2014, Mother executed a Chinese declaration in which she reaffirmed her wish not to bequeath anything to Vivien and her offspring (“2014 Solemn Declaration”).[12]

16.Angela also pleaded Mother’s commencement of HCA 1739/2010 (“HCA 1739”) against Vivien in November 2010,^[13] which evidenced and confirmed the deterioration of the relationship between Mother and Vivien.  In HCA 1739, Mother claimed, inter alia, that Vivien had taken unfair advantage of her, and sought rescission of various arrangements entered into with Vivien.^[14]  Mother’s claims were upheld by Anthony Chan J’s Judgment dated 29 November 2016 (“HCA Judgment”).  Vivien’s appeal from the HCA Judgment has been dismissed by the Court of Appeal (“CA”) in a Judgment dated 30 June 2021 in [2021] HKCA 941 (“CA Judgment”).  The CA further refused leave to appeal to the CFA by way of judgment dated 23 November 2022 (“CA Leave Judgment”).

17.By summons filed on 8 November 2017 in HCA 1739 (“Locus Summons”), Vivien sought to overturn the HCA Judgment on the ground that Mother’s claims in HCA 1739 had been assigned to Angela pursuant to the Gift Documents.  By Judgment dated 20 January 2020 in [2020] HKCFI 235 (“Locus Judgment”), Anthony Chan J dismissed Vivien’s summons. In particular, in rejecting Vivien’s proposal that a conditional judgment be granted so as to provide for the possibility that Vivien will challenge the validity of the documents in the future, Anthony Chan J stated that there was no evidence that the validity of the Gift Declaration and the Deed of Gift were tainted.

C.  RELEVANT LEGAL PRINCIPLES

C1.  Amendment of pleadings

18.The legal principles governing applications for the amendment of pleadings have been summarised by Lord Brandon in Ketteman v Hansel Properties Ltd [1987] 1 AC 189, 212F-H as follows:

(1)  All such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.

(2)  Amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.

(3)  However blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party.

(4)  There is no injustice to the other party if he can be compensated by appropriate orders as to costs.

19.Obviously, leave to amend should be refused if the proposed amendments are bound to fail, and hence liable to be struck out: see Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455, §25 (Cheung JA). 

C2.  Irrelevant allegation of serious misconduct

20.In this respect, an allegation of serious misconduct (such as of dishonesty, fraud or breach of duty) for which no relief is sought is unnecessary and scandalous and is liable to be struck out: Wong Luen Hang v Chan Yuk Lung, HCA 2654/2007 (unrep, 29/08/2008), §§13, 16-18 (Fung J); Tasty Catering Group Ltd v Cheng Hung Kit [2020] HKCFI 2477 §17, affirmed by the CA in [2021] HKCA 1211 at §§5, 10. 

21.In as early as Brooking v Maudslay (1886) 55 LT 343, Kay J explained at 343:

“May a man in his pleadings say ‘the defendant has acted like a rogue, but I ask no relief on that ground?’ That would be an unnecessary statement and scandalous, of course, because it would affect the character of the defendant.”

22.Similarly, if wholly irrelevant matter be set out in such a way that a party must plead to it, and so raise irrelevant issues which may involve expense, trouble, and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action: Wong Luen Hang, Supra §14.

C3.  Lack of particulars

23.Where a party is seeking the court’s indulgence to amend his pleadings, the pleadings must be fully particularised.  The following statement of principle by Fuad JA in Perak Pioneer Ltd v Carrian Holdings Ltd, CACV 59/1985 (unrep, 13/06/1985) at page 5 is apt:

“As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the Court if necessary, but where an amendment is applied for it would be an unusual case where the Court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment.”

24.I agree with Angela’s submission that the reference to the possibility of post-amendment request for further particulars in Vigers Hong Kong Ltd (in Creditors’ Voluntary Liquidation) v Michael Andrew Barclay Binney [2019] HKCFI 461 at §28(d) cannot be read as introducing a lower test for sufficiency of particulars when an amendment is sought, which would be wholly inconsistent with Perak, Ibid.

C4.  Collateral attack

25.It is an abuse for a party to initiate legal proceedings which constitute a collateral attack upon a final decision made against that party by another court of competent jurisdiction where the party had full opportunity to contest the decision, if the pursuit of the same issue in the new proceedings would result in manifest unfairness or bring the administration of justice into disrepute amongst right-thinking people: China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1, §§57-58 (Stock JA, as he then was).

26.The court should not be unduly prescriptive about the circumstances in which abuse of process may be found to arise: Tinkler v Ferguson [2020] 4 WLR 89, §35 (Nicklin J).

27.Abuse can be found even where the parties to the subsequent proceedings are not the same and cannot be described as privies of the original parties: China North, Supra §52.  The fact that the parties are not identical is not determinative.  What is required is “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party … The court should not adopt a formulaic approach to the broad, merits-based assessment that is required when considering whether the subsequent proceedings are Henderson abusive”: Tinkler, Supra §40.

28.Bringing the administration of justice into disrepute would be constituted if there is a claim which has the effect of relitigating a cause which in substance had already been lost in another court of competent jurisdiction: China North, Supra §70.

29.The correctness of the decision (against which the collateral attack is made) is not relevant and it binds the parties until such time as it is set aside on appeal: China North, Supra§48.

30.Duplicative litigation not only causes prejudice to the defendant, in terms of wasted time, costs or effort and the risk of dispersal of evidence, it is also contrary to the public interest generally to allow the risk of inconsistent findings which arise when different courts at different times are required to examine essentially the same factual dispute.  The position is to be judged objectively: the particular circumstances of the parties will generally be irrelevant; hence the need for special circumstances if the full rigour of the rule is to be alleviated: Tinkler, Supra §37.

31.A caveat in the judgment of the first action that it would not “trespass” upon issue in future actions will not, without more, prevent a finding of abuse: Tinkler, Supra §69.  Laying one’s cards clearly on the table, such that the parties and the court is warned that another action on the same issue is or may be in the pipeline, will not necessarily prevent an abuse: Tinkler, Supra §§86-87.

32.The issue of whether there is an abuse is a fact-sensitive one in which the court is concerned with balancing the interests not just of the litigants before it, but also other interests involved in the administration of justice: Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 §83(5) (Ma CJ).

33.The notion that res judicata does not apply in the context of probate actions is incorrect.  Even in matrimonial cases, if a party has tried to establish a matrimonial offence and then fails in the High Court, then the High Court would “as a rule” not allow the defending party to be vexed twice: Thompson v Thompson [1957] P 19, at page 30.

34.Even where the law on res judicata and abuse are relaxed in the family context, if the court is satisfied that there has already been a full and proper enquiry in the previous litigation, it will often hold that it is not necessary to hold another enquiry all over again, but if the court is not so satisfied, it has a right and a duty to inquire into it afresh: Thompson, Ibid, page 29.

C5.  Inconsistent positions

35.It is also an abuse of process for a party, fully knowing the facts, to advance a claim diametrically opposed to the position taken in an earlier set of proceedings.  The abuse lies in its effect on the integrity of the administration of justice, which would be no less compromised even if the previous inconsistent allegation was not followed through to judgment: Chu Yue Bun v Lai Shiu Woon [2021] HKCA 1929 §35(2) (Kwan VP).

36.In Re Shun Tak Holdings Ltd [2009] 5 HKLRD 743, the petitioners had earlier brought proceedings in Macau to challenge the validity of certain shareholding in a company, but later presented an unfair prejudice petition in Hong Kong on the basis that such shareholding was valid.  Kwan J (as she then was) held that it was an abuse of process for the petitioners to adopt such an inconsistent stance and struck out the claim (§§83-90).

37.The abuse lies in its effect on the integrity of the administration of justice: Chan Chun Chuen v Kao, Lee & Yip, HCA 597/2015 (unrep, 12/10/2017), §§30, 78.  It is not only founded on election.

C6.  Probate undue influence

38.As explained below, of particular relevance to this application is a proper understanding of undue influence in the context of probate. 

39.It is well established that there is a different test for undue influence in probate from that for inter vivos or lifetime transactions. In probate, undue influence means influence exercised either by actual coercion, in the sense that the testator’s will must be overborne, or by fraud: Theobald on Wills (19^th edn, 2021) §§4-058, 4-059.

40.The relevant principles for probate undue influence are summarised in Re Edwards [2007] WTLR 1387 (Ch) §47 (Lewison J) as follows:

“(i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

(iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud;

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment, discretion or wishes, is enough to amount to coercion in this sense;

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will …” (Emphasis supplied)

41.The differences between equitable undue influence (governing lifetime transactions) and probate undue influence are as follows:

(1)  Whereas lifetime undue influence may be established where the defendant acted unconscionably by abusing his position of influence over the complainant to obtain an advantage for himself, for conduct to amount to probate undue influence, even if the testator has been persuaded by conduct which may be condemned and disapproved of, that does not amount to undue influence in the absence of coercion.

(2)  That is why in a probate action the court will not hear a whole lifetime’s dispute as to whether a sibling had always been scheming or avaricious.

(3)  If the act is shown to be the intention of the testator at the time, then there is no undue influence “however [the intention] had been brought about.”.  Contra lifetime undue influence, if an intention was brought about by unconscientious exploitation of undue influence over the complainant, that will amount to lifetime undue influence although there was no coercion.

(4)  Though you may condemn the person who has endeavoured to persuade and has succeeded in persuading the testator to adopt that view – still it is not undue influence.

(5)  A defendant who, without using coercion, engages in manipulative conduct that is successful will not be found to have exercised undue influence sufficient to vitiate a will.

(6)  Importunity (ie repeated urging), even by a party with unbounded influence, is not enough.

(7)  In probate undue influence the claimant bears a heavy burden, although still on the civil standard, in proving that the execution of a will was induced by undue influence.  Although even probate undue influence is normally proved by inferences, it is not enough to show that the circumstances are consistent with the hypothesis of the will having been obtained by undue influence: it must be shown that the circumstances are inconsistent with a contrary hypothesis.  Hence, a relationship of influence is not sufficient.

(8)  The presumption of undue influence does not apply to probate undue influence.

D.  COLLATERAL ATTACK

42.This ground is relevant to the pleas in the DAR concerning (1) the divorce between Father and Mother; (2) HCA 1739; and (3) the allegation of concealment of a number of documents.

D1.  HCA 1739

43.Angela complains that the Opposed Amendments amount to a collateral attack on the HCA Judgment and the CA Judgment.  The complaints about HCA 1739 lie at the extreme end of collateral attack.

44.In HCA 1739, Vivien was a party; and Angela was a witness.  Vivien alleged that HCA 1739 was commenced by Mother under Angela’s undue influence and manipulation (which was specifically denied by Mother): see Vivien’s Witness Statement in HCA 1739 §8, where Vivien stated as follows:

“As I shall elaborate further, I have good reason to believe that (1) it is due to the undue influence of [Angela] that [Mother] has commenced this action against me and has made the unfounded allegations in her Statement of Claim against me; and (2) in bringing this action [Mother] is being manipulated and used by [Angela] for [Angela]’s own ends, namely, to extract or to seek leverage to extract a larger share of the estate of [Father]. …” (Emphasis supplied)

45.Vivien had every opportunity to, and did, contend that HCA 1739 was a result of lifetime undue influence exerted by Angela on Mother.  Vivien could have sought third party discovery against Angela but she did not.

46.The allegation that Angela procured Mother to put forth a false case was rejected by Anthony Chan J in the HCA Judgment at §72, after Vivien had decided not to put the contention to Angela.

47.Vivien submits the finding only related to “Angela procured Mother to engineer a false case” and not “undue influence”.  However:

(1)  Vivien’s case was that Mother was unduly influenced by Angela to commence HCA 1739, and the purpose was to assist Angela to get more assets because of Mother’s mistaken belief of “unfairness”: see paragraph 44 above.

(2)  As put by Vivien’s counsel in his oral submission: “influenced by Angela in seizing upon something… , and in fact this is a false case”.

(3)  This was clearly the case that Anthony Chan J rejected: “the mother, under the influence of Angela, engineered a false case”.  See also Angela’s counsel’s description of the point: “effectively what my learned friend would be saying is… the mother has made false evidence because she has been influenced in obviously a very improper way by [Angela]”.

(4)  Anthony Chan J was clearly referring to the same allegation, but just putting it in different terms.

48.Given Anthony Chan J’s query as to whether the contention should be put, clearly he thought there was an issue which required determination.  It was his discretion as to the extent of cross-examination, as a detailed examination of every aspect of the family history was disproportionate.

49.In these circumstances, it is clear that if Vivien were to say against Mother’s estate that HCA 1739 was invalidly initiated or pursued because of Angela’s undue influence (lifetime or probate), surely she would be precluded from doing so, on cause of action estoppel and/or issue estoppel.

50.It is likewise impermissible collateral attack to seek to litigate the issue here (in a probate action concerning Mother’s estate) against Angela (who had given evidence in HCA 1739).

D2.  The Divorce

51.The Divorce was a settlement approved both by the Mental Health Court (for Father), and the Family Court.  The Family Court had a statutory inquisitorial function.  The Mental Health Court would have ensured that Father’s estate was protected, such that if Mother did not validly initiate the proceedings, neither the decree nor the monetary settlement would have been approved.

52.The divorce decree was a judgment in rem.  It binds the world.

53.Father’s Committee was a party.  Vivien, if she were serious about the idea that the Mother did not validly commence the divorce proceedings, could have insisted, as a relative, on the Father’s Committee to take action.

54.Both the divorce decree and the monetary order were judgments by the Family Court.  Although there was an agreement, the Family Court was exercising its statutory function in granting the order.  The Family Court did not just follow the parties’ agreement.  See Hyman v Hyman[1929] AC 601, at 608 & 614 (Lord Hailsham LC), 629 (Lord Atkin).

55.In fact, Vivien had contended that the divorce was procured by lifetime undue influence by Angela on Mother.  It was Vivien’s case in both HCA 1739 and the Divorce Petition (in which she had provided witness statements) that the Divorce Proceedings were brought by Mother under Angela’s undue influence.  Vivien’s counsel at this hearing has not disagreed with this.

56.There is no basis to say that these allegations by Vivien had not been considered.

57.It would bring the administration of justice into disrepute for this to be relitigated again. 

D3.  Allegations of concealment of documents

58.The CA and Anthony Chan J have already adjudicated these issues.  DAR §§56.4, 56.6 and 56.7 amount to a collateral attack on the findings made in the Locus Judgment, CA Judgment and the CA Leave Judgment, in which the documents identified therein were held not to have been concealed by Angela.  Specifically:

(1)  DAR §56.4 alleges that Angela concealed the “Alleged Deed of Trust”.  In CA Judgment §73, the CA specifically found that Angela had not deliberately concealed the 2008 Trust Deed and the Trust documents.  This finding was repeated in the CA Leave Judgment §68.

(2)  DAR §§56.6 alleges that Angela concealed the “Alleged Transfer Documents”, “Alleged Deed of Gift”, “Alleged Gift Declaration”, “Alleged 2012 POA” and “Alleged Deed of Assignment”.  In Locus Judgment §198, Anthony Chan J rejected the allegation that Angela had concealed the Gift Documents.

59.Deletion of DAR §56.7 (which is what Vivien’s counsel indicated in his oral submission) does not solve the problem.  It makes the situation worse.  For an allegation of “concealment” to be viable or comprehensible, there must be an allegation that there was a time when a document ought to have been disclosed.  Vivien’s own plea in DAR §56.7 is that the documents identified in DAR §§56.1 to 56.6 should have been disclosed in HCA 1739.  The courts have spoken on that allegation.  Now that this plea is abandoned, the plea of concealment does not even make sense.

60.DAR §56.8 then pleads that the 2011 POAs should have been registered in 2014.  That can hardly support a claim of actual undue influence.

61.Vivien relies on the case of Schrader v Schrader [2013] WTLR 701 to say that concealment of documents against an opposing party is a factor that can be pleaded from which undue influence can be inferred: see Vivien’s Speaking Note §63.  It does not assist.  Schrader is a case of vastly different facts.  In that case, as one could see from the headnote and §97(ix), the 2006 Will had not been disclosed by Nick until after steps were taken to administer the testatrix’s estate under the 1990 will.  Nick’s explanation was that “he had a thing about wills and had difficulty dealing with them” and that likewise he had not made a will of his own, and this was rejected by the judge: §72.  The present case does not involve anything like that: (1) Angela disclosed in the trial of HCA 1739 (in 2016) the existence of the 2008 Will (but not its contents); (2) Mother died on 18 February 2020, and the affidavit of testamentary script was filed on 16 July 2020. 

E.  INCONSISTENCY WITH POSITION IN PREVIOUS PROCEEDINGS

62.In HCA 1739, Vivien had caused the Locus Summons to be fully litigated.  On the premise that the Gift Documents were valid, she had caused a 6-day hearing to take place, with Angela giving evidence for 2 days (over and above the time she gave evidence in the main trial of HCA 1739).

63.It is true that Vivien had said that she might contend the opposite regarding the validity of the Gift Documents in the future.  Yet that does not change the fact that she had insisted on a full hearing of the Locus Summons.  At least in the context of this case, giving notice that you might very well blow hot and cold does not make the conduct less abusive.

64.Inconsistent position in previous proceedings, even if not followed through to judgment, would amount to abuse.  See Chu Yue Bun, Supra §35(2); Chan Chun Chuen, Supra §30(4).

65.This is amply justified in principle.  A litigant cannot be allowed to take different positions in different proceedings and force the court and other parties to allow her to try one course first, see what happens, and then try the other.  Even if she did not succeed in getting what she wanted on the first try, she should not be allow to take inconsistent positions simply because it suited her.  That is detrimental to the administration of justice.

66.Vivien’s counsel says the cases show that there would only be abuse or collateral attack if the plaintiff “knew the full facts”.  He says that Vivien did not know the full facts in the locus hearing regarding the validity of the Deed of Gift.  But Vivien already knew, and stated expressly, that she would challenge the Deed of Gift later.  This is not a case where she did not know enough facts to decide whether to mount a challenge.

F.  IRRELEVANT AND SCANDALOUS ALLEGATIONS

67.I refer to paragraphs 20 to 22 and 38 to 41 above for the relevant legal principles.

68.Vivien submits that the post-Will events pleaded in the DAR is to counter the effect of Angela’s pleaded Post Will Acts, and not to directly use the post-Will events to impeach the 2008 Will retrospectively.  As such, it is wrong that Vivien has to satisfy the more stringent test of “probate” undue influence as opposed to the lesser standard of undue influence for inter vivos transactions. 

69.I do not agree with Vivien’s submissions.  Angela submits that the relevance of the Post Will Acts was the valid exhibition of Mother’s intent, to support Angela’s case of capacity and knowledge and approval. 

70.Plainly, it cannot be correct that there should be two different tests applicable.  Validity in this context must be validity for the purposes of sustaining a will.  It would be irrelevant to allege matters which would not suffice to invalidate an intent to sustain a will, including:

(1)  She was tired or annoyed.

(2)  There were breaches of fiduciary duty arising from conflict, or preference of personal interest.

(3)  There were circumstances which would suffice for lifetime undue influence, but not probate undue influence, for example, it was because Angela persuaded (though not coerced) Mother to exhibit such intent.

71.It is immediately obvious that Vivien’s pleas based on the alleged “Angela’s Agenda” are thus irrelevant.

(1)  Whether there was such an agenda does not impact the validity of the exhibition of intent.

(2)  The reliance on this plea to plead acts (as part of Angela’s Agenda) that Angela did not rely on, and Vivien could not rely on to sustain an allegation of probate undue influence is irrelevant.

(3)  It is merely an abusive attempt on the part of Vivien to ventilate a large number of scandalous pleas concerning validity of underlying transactions.

(4)  It follows that all acts which are allegedly done “to obtain influence and control over Nan Fung” or “to obtain greater control over Mother’s assets”, which are referable to the definition of “Angela’s Agenda” in DAR §§16.3 and 17, or to further “Angela’s Agenda”, should be disallowed: ie DAR §§19, 31, 32, 33, 35, 42, 44, 47, 54.1.

72.Allegations of Angela being a fiduciary and guilty of non-disclosure (DAR §§52-56) are also plainly irrelevant.

(1)  This is particularly so for the allegations of duty of no conflict and to act in best interest of Mother, and breaches of such duties (DAR §§52.1, 52.2, 53.1-53.3).  Vivien’s counsel described these as “the usual fiduciary duties” – but they are not usual duties in the undue influence context.

(2)  As this court observed, only non-disclosure is relevant to the duty of candour even in the lifetime undue influence context (DAR §§52.3, 53.4). 

(3)  It is no answer for Vivien to say these allegations of conflict of interest are relevant to “fairness”.  They are clearly pleaded in the context of an allegation of breach of equitable fiduciary duties.  The court would not allow Vivien to open up all issues under the guise of some vague notion of “fairness”.

73.Equally obvious is the allegation of lifetime undue influence in respect of a vast number of transactions: DAR §17.  Whether they are liable to be set aside on the ground of lifetime undue influence is wholly irrelevant.

74.More importantly, Vivien has advanced no viable plea of probate undue influence:

(1)  At most, these are just pleas that, on Angela’s persuasion, Angela got Mother into executing a number of transactions and pursuing a number of legal proceedings which were not in her best interest (though in both HCA 1739 and the Divorce, Mother prevailed and was awarded very substantial sums).

(2)  It is not a plea that there was a coercion of the will in any of the events.

(3)  DAR §19 actually plead Mother’s ability to exercise her free will in refusing to sign the MHO affirmation.

75.The reliance by Vivien on the case of Re Lo Siu Fung[2020] HKCFI 2150 is not well founded. 

(1)  That is a strike out case. The absence of plea of “coercion” was bad in form, though a reasonable opportunity to amend was afforded – §25(e).

(2)  But we are here dealing with an application to amend.  The present amendments are the amendments on which leave is sought.

G.  LACK OF PARTICULARITY

G1.  DAR §5.2^[15]

76.This is part of Vivien’s response to RRAR §§27-29, 69B-F which concern the 50/50 Agreement.

77.The paragraph is a generic plea referring to “the chain of correspondence between her lawyers and Angela’s lawyers for the full terms and true effect thereof”.

78.I agree this is unacceptably unparticularised.  It is not possible to discern what matters Vivien will seek to prove by reference to the chain of correspondence, and the precise correspondence on which she relies.

G2.  DAR §5.3^[16]

79.Also on the 50/50 Agreement, the first sentence asserts that Father and Mother had agreed (to which Angela was privy) that the Equality Principle was to apply prospectively and not retrospectively.  This appears to be a response to Angela’s case on the scope of the 50/50 Agreement (encompassing distribution of Father’s assets both past and future), and that Vivien had wrongly insisted on limited disclosure in relation to past gifts from Father: see paragraph 11 above.

80.However, the paragraph lacks proper particulars as to (i) the time(s) and occasion(s) when and the place(s) and circumstances where the alleged agreement between Father and Mother were entered into; and (ii) the time(s) and occasion(s) when and the place(s) and circumstances where Angela purportedly acquired knowledge of the alleged agreement.  It is impossible for Angela to meet this case in her witness statement.

81.The reference to §§15.2 and 15.3 in the DAR does not salvage the defect. As explained below, §15.2 is also defective for want of particulars.  §15.3 merely pleads that Mother and Angela had never complained about gifts Vivien obtained before 1 January 2003.

82.The second sentence further asserts that Angela and Vivien had agreed (to which Mother was privy) that neither Angela nor Vivien would disclose or bring into account gifts to either of them prior to 1 January 2003.

83.Again, it lacks proper particulars as to (i) the time(s) and occasion(s) when and the place(s) and circumstances where the alleged agreement between Angela and Vivien were entered into; and (ii) the time(s) and occasion(s) when and the place(s) and circumstances where Mother purportedly acquired knowledge of the alleged agreement.

84.The third sentence is premised upon the alleged agreements in the first and second sentences, and accordingly unsustainable if the first and second sentences are objectionable for want of particulars.

G3.  DAR §15.2 (third to fifth sentences)^[17]

85.Still on the 50/50 Agreement, the third sentence makes allegations similar to those in §5.3 in that all parties agreed that the Equality Principle should take effect from 1 January 2003 and neither sister was required to disclose gifts received prior to that date.

86.Again, the paragraph lacks proper particulars as to (i) the identity of the persons included in “all parties concerned”; and (ii) the time(s) and occasion(s) when, and the place(s) and circumstances where, the alleged agreement between “all parties concerned” was entered into.

87.The fourth and fifth sentences plead acts which were carried out allegedly based on the alleged agreement in the third sentence.  They are unsustainable if the former is objectionable for want of particulars.

88.Vivien, at §62 of her Speaking Note, refers to a number of events.  She then contends, in §62(4), that the agreement referred to in DAR §5.3 “reflects what may be inferred from the pleaded facts and circumstances as to the agreed basis upon which Father’s distribution of assets and the 50/50 Agreements were negotiated between members of the family”.

89.It would appear, therefore, that the agreement is to be inferred from the vast array of circumstances, not that there was an express communication on a particular occasion.  That was also the oral submission of Vivien’s counsel.  That is hardly something that one can discern from the actual DAR §5.3, thus may cause embarrassment.

H.  CONCLUSION

90.As a substantial number of pleas are disallowed as stated above, leave to introduce the Opposed Amendments should be refused.  Vivien has made an application to introduce this pleading on the basis pleaded.  If a substantial part of it is gone, then this application should simply be dismissed – Vivien can then decide whether, on what remains, she still feels able to seek leave to allege relevant undue influence.  Surely Vivien cannot say that however little is left of her pleas on undue influence, she would still say that those pleas would justify an inference of undue influence.

91.The court will not re-formulate defective proposed amendments for the applicant and it is incumbent on her to make a fresh application for leave to amend (if saw fit): Chan Kon Fung v Gallop Pioneer Ltd, HCA 1357/2011 (unrep, 4/08/2016) §§122-123.

92.For the above reasons, I disallowed the Opposed Amendments. Vivien was granted leave to file and serve an Amended Rejoinder with the Opposed Amendments removed.

Mr Bernard Man, SC, leading Mr Keith Lam and Mr Danny Tang, instructed by Messrs DLA Piper Hong Kong, for the plaintiff

Mr Johnny Mok, SC and Mr Johnny Ma, SC, leading Mr Alexander Tang, instructed by Messrs Anthony Siu & Co, for the defendant