Chan Shu Lam v. Chan Chau Wah

HCAP 6/2020

[2025] HKCFI 3338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 2020

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DECISION ON COSTS

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Introduction

1.On 6 June 2025, I handed down the judgment (the “Judgment”) in respect of the present action ([2025] HKCFI 2338).

2.In this Decision on Costs, I adopt the definitions and the nomenclatures that were used in the Judgment.

3.The present action concerned 2 major issues, namely:

(1)  the validity of the 2019 Will (the “Probate Issue”); and

(2)  the beneficial ownership of the Property (the “Beneficial Ownership Issue”).

4.For the reasons set out in paragraph 143 of the Judgment, I made a costs order nisi that (see Judgment, para 144):-

(1)  the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the estate of the Deceased to be taxed on a party-to-party basis if not agreed (with certificate for one counsel); and

(2)  the Plaintiff’s costs be taxed in accordance with the Legal Aid Regulation.

5.This is the Plaintiff’s application by summons dated 13 June 2025 seeking to vary my costs order nisi. The Plaintiff asks that the costs order nisi be varied as follows:-

(1)  The Defendant be personally liable to pay 80% of the Plaintiff’s costs to be taxed if not agreed.

(2)  The Plaintiff or the Deceased’s estate should pay 20% of the Defendant’s costs to be taxed if not agreed.

The Plaintiff’s Contentions

The Beneficial Ownership Issue

6.Ms Queenie Ng together with Ms Michelle Wong (for the Plaintiff) sensibly accepted that the Defendant was the successful party on the Beneficial Ownership Issue. As such, she is entitled to recover the costs in respect thereof.

7.However, Ms Ng and Ms Wong submitted the costs in respect of the Beneficial Ownership Issue should be limited to no more than 20% of the total costs in these proceedings.

The Probate Issue

8.Insofar as the Probate Issue is concerned, Ms Ng and Ms Wong accepted that in a probate dispute, the court may, depending on the circumstances, depart from the general rule that costs should follow the event if (i) the litigation is caused by the conduct of the testator or the conduct of the residual beneficiary; or (ii) there are circumstances giving rise to a reasonable need to investigate the validity of the will: see Nina Kung v Wan Din Shin (No 2) (2006) 9 HKCFAR 800 at paras 10-19 (per Ribeiro PJ); Chiu Man Fu v Chiu Chung Kwan Ying (HCAP 9/2005, 28 May 2012) at para 4 (per Poon J, as he then was).

9.Nonetheless, Ms Ng and Ms Wong submitted that none of these exceptions applied. In gist, they contended that:-

(1)  The Defendant had strong reason to suspect that the Deceased had executed a new will subsequent to the 2017 Will, and she should not have taken steps to obtain probate based on the 2017 Will.

(2)  The Defendant failed to carry out reasonable enquiry regarding the existence and validity of the 2019 Will.

(3)  In light of the available evidence, it was unreasonable for the Defendant to insist on challenging and disputing the 2019 Will, and she was a hostile litigant.

(4)  Thus, the usual rule of costs follow the event should apply, and the Defendant should pay the Plaintiff’s costs.

Apportionment between the 2 Issues

10.Having heard the trial and considered the pleadings and evidence filed in these proceedings, I am of the view that:-

(1)  65% of the costs in these proceedings were attributed to the Probate Issue; and

(2)  35% of the costs in these proceedings were attributed to the Beneficial Ownership Issue.

11.However, for the reasons elaborated below and bearing in mind the Probate Issue and the Beneficial Ownership Issue had a common factual background, I am of the view that instead of ordering 2 separate sets of costs, it would be just, fair, convenient and cost-effective to order 1 set of costs that holistically takes into account (i) the relative success achieved by the parties; (ii) the circumstances in relation to the present litigation; (iii) the conduct of the parties; and (iv) the aforesaid apportionment.

The Beneficial Ownership Issue

12.There is no question that the Defendant was the successful party in respect of the Beneficial Ownership Issue. For the reasons set out in Section E of the Judgment, I am of the view that neither the Deceased nor the Plaintiff (who is sole beneficiary of the Deceased’s estate under the 2019 Will) should have denied the Defendant’s 14.25% beneficial interest in the Property.

13.In this connection, I am most unimpressed by the Plaintiff’s litigation conduct. For the reasons elaborated in paragraphs 69 to 71 of the Judgment, I find that the Plaintiff knowingly ran a false case that:-

(1)  was inherently improbable;

(2)  had undergone an inexplicable sea change; and

(3)  was flatly contradicted by the objective circumstances as well as the evidence from his own witness (namely Madame Chung).

14.In my view, the costs order of the court must reflect the court’s disapproval of the Plaintiff’s dishonesty and undesirable litigation conduct, which had substantially lengthened the proceedings and caused unnecessary complications.

The Probate Issue

15.I accept that the Plaintiff was the successful party in respect of the Probate Issue: see Judgment, para 143(2).

16.However, for the following reasons, I am unable to accept Ms Ng and Ms Wong’s suggestions that the Defendant should have (i) known that the 2017 Will was not the last will made by the Deceased; and (ii) succumbed to the Plaintiff’s claims based on the 2019 Will at an early stage:-

(1)  Whilst there were occasions where the Deceased and the Defendant had heated quarrels with each other: see Judgment, para 90, the evidence does not show that the Defendant’s relationship with the Deceased had broken down completely. For instance, when the Deceased was hospitalized at the occasion on 8 August 2019, the Defendant immediately attended United Christian Hospital: see Judgment, para 112(2).

(2)  After all, the Defendant was the person who shouldered the responsibilities of taking care of the Deceased throughout the years: see Judgment, para 84. There is no question that the Defendant did repose trust and confidence in the Deceased. This was the reason why the Defendant was willing to defray the outstanding mortgage loan secured against the Property based on the mere oral assurance from the Deceased: see Judgment, paras 67 and 75.

(3)  I accept that the Deceased was not under a legal obligation to inform the Defendant about her decision to make the 2019 Will (which superseded and replaced the 2017 Will).

(4)  Nonetheless, the reality was that in light of her dealing and relationship with the Deceased throughout the years, the Defendant had reasonable grounds to expect the Deceased to inform her about the change of mind. In this connection, it was the Defendant’s evidence that before the Deceased made the 2017 Will, the Deceased said that the interest in the Property would be given to her because she took care of the Deceased throughout the years. The Defendant also said that upon executing the 2017 Will, the Deceased gave her the title deeds of the Property. As such, the Defendant believed that had the Deceased made the 2019 Will out of free will, the Deceased would have asked her to hand over the title deeds to the Plaintiff. This did not happen. I fully accept the Defendant’s evidence. I am of the view that the Defendant’s expectation to be informed was reasonable. She had reasons to believe that had the 2019 Will been genuine, the Deceased would have informed her about the decision and/or change of mind.

(5)  It was true that the Deceased expressed animosity towards the Defendant on various occasions. However, I do not see any compelling reason why the Deceased should keep the Defendant in the dark in regard to the 2019 Will and/or her change of mind. The Defendant could not have done anything to undermine the 2019 Will. With no disrespect, I am not of the view that the Deceased’s conduct was reasonable. In my view, without hearing one single word from the Deceased, the Defendant had reasons to feel suspicious and doubtful, and her suspicion and doubt were justified.

(6)  I am also of the view that there were suspicious circumstances surrounding the events that took place on 8 August 2019. As pointed out in paragraph 112 of the Judgment, in the morning on 8 August 2019, due to sickness, the Deceased was sent to United Christian Hospital by ambulance. However, in the evening, the Deceased promptly made the 2019 Will at Ms Ho’s office.

(7)  In this connection, it is important not to lose sight that:-

(a)  On the face of the hospital discharge form, the Deceased was discharged from United Christian Hospital against medical advice, and the Plaintiff signed the form as a witness (see Judgment, paras 56 and 57(1)).

(b)  The Deceased suffered delirium on numerous occasions when she was hospitalized previously (see Judgment, para 134).

(c)  The Deceased was a fragile elder who suffered from neurocognitive disorders (or dementia) (see Judgment, para 127(7)).

(d)  The contemporaneous notes jotted by Dr Hung showed that the Deceased provided incorrect or inaccurate information (such as information regarding the repayment of the mortgage loan: see Judgment, para 127(1)).

(e)  The contemporaneous notes jotted by Dr Hung also contained materials that cast doubt on the Deceased’s mental capacity. For instance, although the Deceased attended the wedding of the Defendant’s son back in late 2016, she could not recall whether the Defendant had children (see Judgment, paras 47 and 127(5)).

(8)  In the circumstances, the Defendant had solid reasons to doubt whether the Deceased was sober and had testamentary capacity at the time when the 2019 Will was made. In light of the matters set out above, I am of the view that the Defendant’s doubt and suspicion were reasonable and understandable.

(9)  In light of my findings (see Judgment, paras 111 to 132), the doubt and suspicion surrounding the events on 8 August 2019 have been dispelled now. However, it is important not to assess the Defendant’s conduct with the benefit of hindsight. Indeed, I was only able to form the view that Dr Hung, Madame Chung and Ms Ho were honest witnesses after hearing their live evidence upon cross-examination. In this connection, Dr Hung only explained why the incorrect or inaccurate information provided by the Deceased and the loss of memory on her part were immaterial when he was cross-examined during the trial. Without the trial, the Defendant, who had been kept in the dark all along, could not have assessed whether Dr Hung, Madame Chung and Ms Ho were honest or not; nor could the Defendant and her advisors have formed a view as to whether Dr Hung’s opinion, diagnosis and analysis were sound.

(10)  Lastly, I do not lose sight of the fact that the Plaintiff completely stonewalled the Defendant from the Deceased’s affairs before she passed away. He concealed the whereabouts of the Deceased from the Defendant. He did not even inform the Defendant about the Deceased’s death, such that the Defendant had no opportunity to attend her funeral. In my view, the Plaintiff’s conduct was not reasonable, and his conduct only strengthened the Defendant’s suspicion.

17.In the premises, I am of the view (i) it can be said that the present litigation was caused by the conduct of the Deceased and the Plaintiff; and (ii) there was a reasonable need to investigate the validity of the 2019 Will. As such, there are good reasons to depart from the usual rule that costs should follow the event: see Nina Kung (supra) at paras 10-19; Chiu Man Fu (supra) at para 4.

18.However, the fact that the Defendant is the unsuccessful party on the Probate Issue is still a factor that the court should take into account. In this connection, I do not lose sight that Dr Wong’s retrospective diagnosis (which was based on analysis of the objective medical evidence) supported the Plaintiff’s case. I am of the view that upon receiving Dr Wong’s report (which was available in April 2022), the Defendant should have appreciated that the Plaintiff’s case was supported by solid medical analysis. In light of the suspicious circumstances discussed above, I accept that there were legitimate reasons why the Defendant wished to test Dr Wong’s analysis at trial. However, the reality was that Dr Wong was unshaken during cross-examination. In my view, the costs order should reflect the fact that the Defendant continued to challenge the 2019 Will after she had the opportunity to consider Dr Wong’s analysis.

19.Meanwhile, the costs order should also take into account the fact that the Plaintiff made false allegations regarding the Defendant’s character and conduct. As pointed out in paragraphs 82 to 87 of the Judgment, whilst the Defendant was a filial daughter who admirably shouldered the responsibility of taking care of the Deceased, the Plaintiff ran a false case suggesting that she abandoned the Deceased and acted out of greed. Further, as pointed out in paragraphs 93 to 96 of the Judgment, the Plaintiff lied about the facts that he did not try to locate the Deceased from 2016 to 2019 and that he and/or his son pocketed a sum of HK$125,000 belonging to the Deceased. The Plaintiff conjured up these false assertions for the purposes of:-

(1)  demonizing the Defendant; and

(2)  painting a false picture as if he were (i) deeply concerned about the Deceased’s wellbeing; and (ii) honest with the Deceased about her financial affairs.

20.These false assertions had lengthened the proceedings and caused unnecessary complications. I am unimpressed. In my view, the costs order must reflect the court’s disapproval of the plaintiff’s dishonesty and undesirable litigation conduct.

Conclusion

21.Having re-considered all the circumstances in the round, I maintain the view that it would be fair to make a costs order that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the Deceased’s estate.

22.Whilst I do not lose sight of the fact that the Plaintiff, being the sole beneficiary of the Deceased’s estate under the 2019 Will, will effectively bear 65% of the Defendant’s costs, I take into account that:-

(1)  The Defendant was the successful party in respect of the Beneficial Ownership Issue. Neither the Deceased nor the Plaintiff should have denied her beneficial interest.

(2)  Although the Plaintiff was the successful party in respect of the Probate Issue, the Defendant had reasonable grounds to doubt the validity of the 2019 Will. The Deceased and the Plaintiff were responsible for creating the doubt and suspicion on the part of the Defendant, and it was reasonable for the Defendant to ask the court to investigate the validity of the 2019 Will.

(3)  Despite the medical opinion expressed by Dr Wong (who conducted a retrospective diagnosis based on the objective medical evidence), the Defendant continued to challenge the 2019 Will. However, it cannot be said that Dr Wong’s expert report was made available at a very early stage of the proceedings, and there were legitimate reasons why the Defendant would wish to test Dr Wong’s analysis at trial.

(4)  Apart from the matter mentioned in the subparagraph (3) above, I am of the view that the Defendant conducted the proceedings in a reasonable manner. Whilst she was an honest witness, her legal representatives, by and large, focused on the matters in respect of which there were doubt and suspicion. They did not adopt a “kitchen sink” approach that aimed at advancing the Defendant’s financial interest.

(5)  The court disapproved the Plaintiff’s litigation conduct. He knowingly made various false allegations, which had lengthened the proceedings and caused unnecessary complications.

23.In the premises, I refuse to vary the costs order nisi under paragraph 144 of the Judgment, and I dismiss the Plaintiff’s summons dated 13 June 2025.

24.Costs should follow the event.

25.I make a costs order nisi that the Plaintiff should pay the Defendant’s costs in respect of the summons dated 13 June 2025 to be taxed if not agreed with certificate for counsel.

26.I thank Ms Queenie Ng, Ms Michelle Wong and Mr Stephen Siu for their helpful assistance.

Ms Queenie W S Ng and Ms Michelle L Y Wong, instructed by M/s Cheung & Co, for the Plaintiff

Mr Stephen Siu, instructed by M/s Jisp Cheung & Co, Solicitors, for the Defendant