Mao Weimin v. Mao Weiguo (in the Capacity As the Administrator of the Estate of the Deceased) and Others

HCMP 861/2023

[2025] HKCFI 2107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 861 OF 2023

_________________________________

_________________________________

BETWEEN

_________________________________

_________________________________

JUDGMENT

_________________________________

Introduction

1.Mr Mao Weimin (“Min”) commenced these proceedings by an Originating Summons dated 5 June 2023 which was later amended on 4 March 2024. By the Amended Originating Summons (“the AOS”), Min principally asks for the following orders:

1. An order that the Letters of Administration granted to Yu Wai (余蕙) (“the Mother”) under Grant No. HCAG005866/2018 (“the 2019 LA”) dated 23 May 2019 be revoked;

2. An order that the Letters of Administration De Bonis Non granted to Mr Mao Weiguo (“Guo”) under Grant No. HCAG016234/2023 dated 14 December 2023 (“the 2023 LA”) be revoked;

3. An order that Guo do give on oath a full and proper inventory and account of properties in the estate of Mr Mo Tsz Kan (“the Father”) held by the estate of the Mother and its dealings with them within 28 days;

4. An order that Guo do give on oath a full and proper inventory and account of properties in the estate of the Father held by Guo and his dealings with them within 28 days;

5. An order that probate of the Father be granted to Min upon compliance with the requisition which may be raised by the Probate Registry;

6. An order that the probate of the will of the Mother dated 14^th May 2019 granted to Guo on an unknown date (“the Mother’s Probate”) be revoked; and

7. An order the probate of the will of the Mother dated 14^th January 2021 be granted to Min upon his compliance with the requisition which may be raised by the Probate Registry;

8. A declaration that Guo (in the capacity of both the administrator of the estate of the Father and the executor of the estate of the Mother) holds all the assets and proceeds of the estate of the Father in his possession, control and custody on trust for the estate of the Father;

9. A declaration that Guo holds all the assets and proceeds of the estate of the Mother in his possession, control and custody on trust for the estate of the Mother;

10. An order that the assets and properties of the estate of the Father be vested in Min;

11. An order that Guo do pay to Min of all sums found due on taking of such accounts, and for all necessary steps to be taken by Guo to deliver up the assets and proceeds in his hands representing those of the estate of the Father within 28 days thereafter;

12. An order that the assets and properties of the estate of the Mother be vested in Min;

13. An order that Guo do pay to Min of all sums found due on taking of such accounts, and for all necessary steps to be taken by Guo to deliver up the assets and proceeds in his hand representing the estate of the Mother within 28 days thereafter;

14. Further or other accounts, inquiries, directions or relief be made as the Court may think fit; and

15. An order that Guo personally do pay costs of the AOS to Min on an indemnity basis.

2.In these proceedings, Min sues Guo, firstly, in the capacity of the Administrator of the estate of the Father as the 1^st Defendant, secondly, in the capacity of the Executor of the estate of the Mother as the 2^nd Defendant and thirdly, in his personal capacity as the 3^rd Defendant.

3.It is evident that these proceedings concern the administration of the estate of the Father and the estate of the Mother. The Father and the Mother had two sons. Guo is the eldest and Min is the younger one.

4.Mr Fong appears for Min and Mr Ma appears for Guo in all the three capacities.

Undisputed/Indisputable background facts

5.A great deal of background facts are not controversial and are evidenced by undisputed documentary evidence. They can be outlined as follows.

6.The Father passed away on 17 December 2013. In his lifetime, he made two wills.

7.First, on 12 May 2010, in the office of Messrs. Hagon Wai & Partners (“HWP”), he executed a will of the same date (“the 2010 Will”) whereby he bequeathed the entirety of his estate to Min absolutely and appointed him to be the sole executor of his estate.

8.Second, on 3 May 2011, in the office of a notary public in Shanghai, the Father executed a will of the same date (“the 2011 Will”) in the presence of two notaries public. The full text of the 2011 Will is reproduced below:

遺囑

立遺囑人： 毛子瑾，男， 一九三二年四月二十五日出生，持有號碼為K220081(3)的香港永久性居民身份證。
為防止今後發生糾紛，我，毛子瑾趁現在身體健康，頭腦清楚之際， 特立遺囑如下：
坐落在上海市柳州路六00弄三號十一 A室的房屋（毛子瑾、毛維民、余蕙共同共有（產權中依法屬於我的產權份額，在我去世後由我的兒子毛維民（ 一九六0年七月四日出生）一人繼承，不作為他的夫妻共同財產。
立遺囑人：

二0一一年五月三日

9.On the other hand, the Mother executed a will dated 12 May 2010 (“the Mother’s 1^st Will”) together with the Father in the office of HWP whereby the Mother bequeathed all her real and personal properties to Min absolutely and appointed Min to be the sole executor of her estate.

10.Subsequently, on 14 May 2019, the Mother executed another will of the same date (“the Mother’s 2^nd Will”) whereby the Mother bequeathed all her real and personal properties to Guo absolutely and appointed Guo to be the sole executor of her estate.

11.In the Mother’s 2^nd Will, the Mother expressly revoked all her former wills, codicils and testamentary dispositions and declared it to be her last will.

12.Lastly, on 14 January 2021, in the office of Yuan Wen (Shanghai) Law Firm, the Mother executed another will (“the Mother’s 3^rd Will”) whereby the Mother made several specific legacies mostly to Guo. She made provisions for Min as well. Guo is also the sole residuary legatee under the Mother’s 3^rd Will. The Mother did not appoint any executor under the Mother’s 3^rd Will.

13.Regarding the estate of the Father, the Mother obtained the 2019 LA upon her application to the High Court of Hong Kong.

14.The Mother passed away on 2 January 2023. Based on the Mother’s 2^nd Will, Guo applied and was granted the 2023 LA.

Agreed issues to be determined

15.The parties agree that the major issues calling for the determination by this court are as follows:

1. Whether the 2010 Will was revoked by the 2011 Will;

2. Whether the 2019 LA and the 2023 LA were wrongfully obtained by the Mother and Guo respectively;

3. Whether the probate of the estate of the Father should be granted to Min; and

4. Who should be granted the probate of the estate of the Mother, Min or Guo.

16.Min has filed three affirmations in support of his application and Guo has filed a brief affirmation in opposition.

Revocation of the 2010 Will by the 2011 Will

17.It is not in dispute that a later will may revoke all earlier wills even though it contains no clause of revocation and leaves the residue undisposed of: Re Bryan [1907] P125.

18.Where there was no express revocation clause in a later will, the question is not which will is to apply but what dispositions the testator intended to make and whether it was the intention of the testator that the dispositions of the earlier will should remain operative in whole or in part. There is a presumption against implied revocation and an implied revocation would only be found from looking at the terms of successive testamentary instruments where there was established to be a logical inconsistency between them: Perdoni and Anor. v Curati [2011] EWHC 3442 (Ch).

19.Where there is no real inconsistency between the two wills made by a testator, the later one does not revoke the former one: Deakin v Garvie (1919) 36 TLR 122 (CA, Eng).

20.Mr Ma submits that the 2011 Will is wholly inconsistent with the 2010 Will and the former has completely revoked the latter. The upshot is that there is an intestacy as to the residue of the estate of the Father.

21.Mr Fong submits that there is no revocation clause in the 2011 Will and there is no inconsistency between the 2010 Will and the 2011 Will. The 2011 Will merely dealt with one single Mainland China property specifically.

22.Mr Fong draws my attention to the following passage in Tristram and Coote’s Probate Practice (32^nd ed.) at §3.207:

“Where it appears from the will produced for probate that the testator has made two or more wills, one relating only to his property in England and Wales, and the other (or others) relating only to his property in other countries, and it is the clear intention that they shall take effect separately, then, upon an attested copy of the will (or wills) dealing with property in other countries being filed together with a verifying affidavit or witness statement, probate will issue of the English will alone. If there is doubt as to whether the intention is clear in such a case it is advisable to refer the matter to the probate manager or the district probate registrar before preparing the papers.”

23.I accept Mr Fong’s submission for the following reasons.

24.In the first place, to my mind, the 2011 Will is not really a later will. The Father did not make any particular testamentary disposition by the 2011 Will.

25.In a conversation record signed by the Mother, Min and Guo dated 22 March 2016 (“the Conversation Record”), it was disclosed that the subject property under the 2011 Will in Shanghai (“the Shanghai Property”) was purchased in 1999 and registered in the names of the Father, the Mother and Min. It was stated that one third of the beneficial interest in the Shanghai Property belonged to the estate of the Father.

26.In the 2010 Will, the Father bequeathed all his real and personal property wheresoever to Min. Such property bequeathed to Min must include all real properties regardless of their physical locations. Therefore, the Father had already bequeathed his beneficial interest in the Shanghai Property to Min by the 2010 Will.

27.The purpose of the 2011 Will is plain and obvious. The Father did not make any different disposition of his beneficial interest in the Shanghai Property. He stated unequivocally that, consistent with the 2010 Will, Min alone would be bequeathed his beneficial interest in the Shanghai Property. The Father merely wanted to make it clear that such beneficial interest bequeathed to Min upon his demise would not form part of Min’s matrimonial property to avoid any dispute. This manifest intention of the Father was to separate the beneficial interest in the Shanghai Property to be vested in Min in accordance with the 2010 Will from the matrimonial properties of Min. The Father seemingly wanted to keep his beneficial interest in the Shanghai Property beyond the reach of the wife of Min so that she could make any claim in the same. I am not sure and I do not have to determine whether this is achievable in PRC law.

28.I am of the firm view that the 2011 Will is not in any way inconsistent with the 2010 Will at all and I do not think that the Father made any testamentary disposition by the 2011 Will at all despite the document was entitled and described as a will.

29.I am unable to accept the submission of Mr Ma that the 2011 Will was intended by the Father to confine Min’s entitlement to his beneficial interest in the Shanghai Property. To start with, the contents of the 2011 Will are not amenable to such an interpretation. It is also absurd that the Father intended that the 2011 Will should deprive Min of his previous bequeathment of his entire estate and leave only his beneficial interest in the Shanghai Property to Min without making dispositions of all his other real and personal property rendering his estate to be partially intestate.

30.Therefore, I conclude that the 2011 Will did not revoke the 2010 Will.

31.I do not find any genuine interpretation or construction issue of the 2011 Will. I fail to see the need to examine all the purported evidence of the surrounding circumstances to ascertain the intention of the Father in his creation of the 2011 Will.

32.Mr Ma made detailed submissions on an alleged family arrangement agreed by Min, Guo and the Mother in or about 2016. The family arrangement relates to the administration and distribution of the Father’s properties in Mainland China as evidenced by several legal documents executed in the Mainland including three documents all entitled 放弃继承权声明书 (“Renunciation of Succession Right Certificates”) created in 2016.

33.Mr Ma further relies on the Conversation Record to prove the family arrangement. He draws my attention to the fact that Min and the Mother admitted that the 2011 Will was the last will of the Father.

34.I fail to understand how the family arrangement reached subsequent to the demise of the Father can in any way reflect his testamentary intention in the 2010 Will. Even Guo did not make such an assertion in his affirmation.

35.I have perused the Renunciation of Succession Right Certificates. By these certificates, each of Min, Guo and the Mother renounced his/her respective succession right in respect of a property of the Father in Shanghai (not the Shanghai Property) and his shareholding in a company in Shanghai. Such succession rights were expressly originated from the succession law in the Mainland and did not arise from any testamentary disposition of the Father.

36.Guo did not give any explanation about Renunciation of Succession Right Certificates. Mr Ma does not explain how these renunciations affect the validity of the 2010 Will.

37.As regard the alleged admission evidenced by the Conversation Record, Min and the Mother expressly referred to the 2011 Will by which the Father bequeathed his beneficial interest in the Shanghai Property to Min. They confirmed that it was the last will of the Father. This confirmation must be understood in its context and in any event, whatever the parties agreed among themselves cannot alter the legal status of the 2010 Will and the 2011 Will.

38.In the premises, I come to the conclusion that the 2011 Will did not revoke the 2010 Will.

39.I am unable to understand how the Mother applied the 2019 LA on the basis that the Father died intestate. She went to HWP to execute her will on the same day when the Father went to HWP to execute the 2010 Will. It is likely that they went to HWP and execute their respective wills together. It is most unlikely that the Mother did not know the Father executed the 2010 Will. It cries out for an explanation why she decided to apply the 2019 LA on the representation that the Father died intestate.

40.It should be noted that the application for the 2019 LA was on an ex part basis. Wilson Chan J in Kwok May Sin Kylie (in her personal capacity and in her capacity as the intended personal representative of the estate of Kwok Mei Lung, deceased) v Fu Ke An [2020] HKCFI 343 explained the duty of an applicant in such an ex parte application for grant in the following terms (at §53):

“The LA Grant was a common form grant applied for by the defendant without notice to the plaintiff or any other family members of the Deceased. It was therefore an ex parte application, and as such the defendant was under a duty of full and frank disclosure: –

(1) As held by the court in Ghafoor v Cliffe (supra) at [46] – [47], the principles of disclosure applicable to applications without notice “apply to applications under the Non-Contentious Probate Rules”. The applicant for the grant “should have clearly set out the facts as known to him” in his affidavit, especially where he had time to investigate the position (at [54]). In circumstances of uncertainty, instead of using a rigid form of words, it would be “far better to summarize the circumstances, and explain the uncertainties” (at [85]).

(2) This was applied and adopted in Re Estate of Wan Sing Hon (supra) at [22], by Lam J (as he then was), where he agreed that “the duty of full and frank disclosure applies equally to non-contentious probate applications as in ex parte applications for an injunction”.

(3) Similarly, in Re Estate of Cheung Hung [2011] 1 HKLRD 455, Lam J (as he then was) once again reminded at [29] that “by reason of the ex parte nature of an application, each applicant and those advising him or her owe a duty of full and frank disclosure to the court. They also have a duty to exercise due diligence in ensuring that the relevant information is provided to the court. Thus, the court expects a solicitor acting for an applicant for grant to have carried out all necessary investigation pertaining to an application (including investigation on matters relevant to the issue of priority and suitability) in preparing the application and providing answers to requisitions”.

(4) The above principles were again confirmed and applied in Re Estate of Wong Yuen Leong (supra) at [10] to [11], where the court observed as follows:

“10. Under section 33(1) of the Probate and Administration Ordinance, Cap 10, a grant of letters of administration may be revoked if it appears to the court that it ought not to have been granted. Non-disclosure of material facts in an ex parte application for a grant is a well-established ground for revocation…

11. The rationale behind this ground is self-evident. Given the nature of an ex parte application, the applicant and his legal advisers must proceed with the highest good faith. It is imperative that they should make full and frank disclosure of all facts and matters material to the application for grant. Time and again, the court has reminded the parties and their legal advisers of the importance to fully discharge the duty and warned them of the serious consequences that may follow if they do not. …” (emphasis supplied)”

41.It is clear that the Mother had the duty of full and frank disclosure in her application for the 2019 LA. It is alarming that there was no mention let alone disclosure of the 2010 Will.

42.Guo in his affirmation did not explain the Mother’s non-disclosure of the 2010 Will.

43.I also find that Guo himself failed to discharge his duty of full and frank disclosure when he made an ex parte application for the 2023 LA. It is undeniable that he had knowledge of the 2010 Will at the material time. He must know the position of Min on the validity of the 2010 Will. He should have made disclosure of the 2010 Will in his ex parte application.

44.The unexplained failure to make full and frank disclosure on the part of the Mother and Guo is inexcusable regardless of their stance on the validity of the 2010 Will. Had they had made such disclosure relating to the 2010 Will to the Probate Registry, the Probate Registry would very likely have raised requisitions and given notice of their applications to Min. Min would then have had the chance to make representations to the Probate Registry. The probable consequence would be that neither the 2019 LA nor the 2023 LA would have been granted.

45.Thus, on the ground of material non-disclosure alone, the 2019 LA must be liable to be revoked. The revocation of the 2023 LA must follow.

46.I am able to make the finding that the 2011Will did not revoke the 2010 Will and order the revocation of the 2019 LA and the 2023 LA on the ground of material non-disclosure summarily. There is no significant factual dispute relating to these two matters. It is not necessary for the AOS to be converted into an action as if it is begun by writ to carry out any factual investigation insofar as these two matters are concerned.

Probate of the estate of the Father

47.In his affirmation, Guo indicates that he does not accept that the 2010 Will is valid albeit on the ground that it was revoked by the 2011 Will. Even if Guo does not challenge its validity, Min is still obliged to propound the same and prove its validity by evidence: Kwok May Sin Kylie at §§28(1) and (2).

48.Even in an uncontested or undefended application, to propound or prove the validity of a will, there has to be written evidence form at least one attesting witness to prove the due execution of the will: Kwok May Sin Kylie at §29 citing Chow Siu Po v Wong Ming Fung [2004] 1 HKC 10 per DHCJ Lam (as Lam PJ then was) at §7.

49.Min has adduced no evidence to prove the validity of the 2010 Will. I am unable to accede to his application for a grant of the probate of the 2010 Will.

Probate of the estate of the Mother

50.Min’s application relating to the estate of the Mother is a non-starter.

51.Min said he was informed by the letter of the solicitors of Guo dated 5 March 2024 (“the Letter”) that the probate of the Mother had not yet been granted and so he amended the OS to seek certain relief in respect of the estate of the Mother as well including the grant of the probate of the Mother’s 3^rd Will to him.

52.However, in the Letter, it was revealed that Min actually filed the caveat No. HCCA 0018901/23 dated 28 March 2023. Min must know throughout that there could be no grant without his notice.

53.In his written submissions, Mr Fong only relies on the fact that Min is one of the beneficiaries under the Mother’s 3^rd Will and Guo’s perjuries in respect of the estate of the Mother. He submits that Guo deliberately applied for the probate of the Mother’s 2^nd Will instead of the Mother’s 3^rd Will because under the former will, Guo is the sole beneficiary whereas under the latter will, both Min and Guo are the beneficiaries. He points out that by June 2023 when Guo was served the affirmation of Min, he should know the existence of the Mother’s 3^rd Will. Guo applied for the probate of the Mother’s 2^nd Will on 18 July 2023 nevertheless.

54.In his affirmation, Guo alleges that neither the Mother nor Min told him about the Mother’s 3^rd Will.

55.Obviously, the disputes between Min and Guo relating to the estate of the Mother fall outside the ambit of these proceedings and a probate action appears to be inevitable.

Conclusion and orders

56.For the reasons given, I am of the view that neither the 2019 LA nor the 2023 LA should have been granted. The Mother and Guo obtained these two grants with material non-disclosure and they must be set aside.

57.On the other hand, it is merely jumping the gun for Min to ask for such relief relating to the estate of the Mother. Asking for the revocation of the grant, I am unable to accede to this part of his application.

58.Accordingly, I make the following order to dispose of the AOS:

1. An order that the 2019 LA be lodged with the court and be revoked;

2. An order that the 2023 LA be lodged with the court and be revoked;

3. A declaration that Guo (in the capacity of both the administrator of the estate of the Father and the executor of the estate of the Mother) holds all the assets, proceeds or monies of the estate of the Father in his possession, control and custody on trust for the estate of the Father;

4. An order that Guo do give on oath a full and proper inventory of properties in the estate of the Father held by the estate of the Mother and its dealings with them within 56 days;

5. There be liberty for Min to apply for probate of the 2010 Will;

6. Upon the grant of probate to Min, Guo do provide a full and proper account on oath within 28 days of (i) all the assets, proceeds or money of the estate of the Father that may be in his possession, control or custody; (ii) Guo’s dealings therewith if any; and (iii) upon such account, transfer of such assets or payment of such proceeds or money to Min as the sole executor of the estate of the Father with 28 days thereafter and

7. Liberty to apply.

59.Guo has failed in his opposition to the revocation of the 2019 LA and the 2023 LA and raised unmeritorious arguments. Min has failed in his application relating to the estate of the Mother. On a nisi basis, I order that the three defendants do pay 70% of Min’s costs of the AOS including all costs reserved.

60.Lastly, I thank Mr Fong and Mr Ma for their assistance rendered to this court.

Mr Forest Fong, instructed by Simon Ho & Co., for the plaintiff

Mr Billy N. P. Ma, instructed by T.C. Lau & Co., for the 1^st to 3^rd defendants