Cx v. Hkc, The Sole Executor of the Estate of Hkm, Deceased

FCMP 9/2024

[2025] HKFC 179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO 9 OF 2024

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J U D G M E N T
( Leave to appeal By paper Disposal)

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This Application

1.This is the Respondent’s application, acting on behalf of the estate of the deceased, to appeal against my granting of leave to the Applicant to take out her application under the Inheritance (Provision for Family and Dependants) Ordinance Cap 481 (the “Ordinance”) out of time.

2.My decision is set out in the Judgment dated 24 June 2025 (the “Judgment”).

Background

3.The background to this case has been set out in the Judgement and will not be repeated here.

Legal principles on Leave to Appeal

4.Under Section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

5.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

6.The granting of leave is a case management decision, and the law with regard to appealing against a case management decision is trite. On this I turn to the decision of Chu JA in the case of NPYJ v SMRC, [2020] HKCA 832, where she propounded the following principle:

“23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.”

Respondent’s Application for Leave to Appeal

7.The Respondent lists out 5 intended grounds of appeal, the following are taken from his Notice of Appeal:

Ground 1: “Having found (1) that A did not speak the truth as to when she actually knew about the Grant of Probate (2) that A has not been able to satisfactorily discharge her burden in justifying her delay for her application (§58 of the Judgment) (3) that when negotiations took place, the 6-month statutory limit period has long since expired (§59 of the Judgment) and (4) that there was insufficient evidence to substantiate that the refusal of A’s application would leave A without redress (§62 of the Judgment), the learned Judge erred in still granting leave for A’s application to be made out of time (74 of the Judgement)

8.The factors to be considered under guidance of the legal principles, cited in §18 of the Judgment, are all factors that I have to consider. Not one factor is more important than the other, and must be considered in a balance manner having regard to what is right and proper. That was the exercised conducted by me in the Judgment.

9.Having found that the Applicant had a less than satisfying position in her delay, I felt that it was fair that she should have the opportunity to argue her case in Court (§74 of the Judgement). I have therefore dealt with the issue of her delay with a Cost Order against her (§75 of the Judgement).

Ground 2: “In so granting leave, the learned judge erred in ascribing and attributing undue and unreasonable weight on or importance to her own finding that “there is a triable issue on A’s case” (§72 of the Judgement) which itself is contradictory to §73 of the Judgment where the learned judge accepted that, based on the evidence so far adduced by A, “it is not possible to assess the prospects of her claim at this stage of the proceedings””.

10.I repeat paragraph 8 herein as to my consideration of various factors in the Applicant’s case.

11.The finding of a triable issue on the Applicant’s case is different from the adequacy of information to make findings on the Applicant’s claims. The Applicant’s counsel rightly submits that the finding of a triable case discloses a cause of action that deserves to go to trial, and this was indeed my finding.

12.There is clearly a need to provide more evidence with more disclosure on the part of both the Applicant and the beneficiary under the Will, (also the Respondent here as executor); which are to be assessed and considered with regard to merits of the claim and testing of the evidence at trial.

13.There is therefore no contradiction, and I cannot see how this intended ground has a prospect of success on appeal.

Ground 3: “The learned judge has failed to grapple with the question whether a triable issue has been raised that 5% allocated to A under the 2019 Will has been reasonable provisions for A. In any event, such finding by the learned judge is erroneous and problematic because of, inter alia, the following circumstances:

a.  Lack of independent documentary evidence to support A’s contention she received $4,600 from the deceased plus additional sums of utilities

b.  A was able to maintain herself without drawing from her savings account, which means A’s income was sufficient to support herself

c.  Glaring lack of evidence on A’s needs and resources and alleged dependency”

14.It appears that the Respondent is saying that I was wrong in deciding that there is a triable issue in the light of the above factors, and should have considered the adequacy of the 5% allocation of the estate to the Applicant.

15.A is the wife of the deceased, her entitlement under the Ordinance is not limited to her “dependency”, and as cited in §§64 and 66 of the Judgment, should be assessed based on reasonableness of the circumstances, “whether or not that provision is required for his or her maintenance”, and cross checked on a “divorce standard”.

16.As at the date of hearing of the application to apply under the Ordinance out of time, parties’ financial information was limited. Factors a to c above cannot be assessed in the absence of more of such information. I expect this case to proceed with submission of evidence on parties’ financials and needs; and in a subsequent Directions hearing on 16 September 2025, further evidence has been called for.

17.Counsel for the Applicant says that even if the Court were to conduct an assessment of 5% of the estate and to consider whether the Applicant’s potential claim may exceed, the answer must be “arguable” – thus “passing the standard required” for the leave under the Ordinance. This is one of the criteria cited in §18 of the Judgment which sets out the principles to be considered in the application.

18.I am of the view that this intended ground is misconceived and cannot have any prospect of success on appeal.

Ground 4: “In assessing whether A’s case is credible in respect of her alleged dependency on the Deceased so as to give rise to any triable issue, the Court should have (but unfortunately did not) considered and attached sufficient weight to the finding that A has not been truthful in her evidence given on oath as to when she knew about the Grant of Probate. The accepted falsity and untruthfulness of her evidence should have impacted upon the Court’s approach in assessing A’s self-serving evidence that she had been maintained by the Deceased in the past.”

19.The Respondent is expecting the Court to come to a conclusion on the A’s credibility and her case based on submissions alone; without considering more evidence, hearing her oral evidence, and observing how she conducts herself under cross examination. This is clearly premature, and an unreasonable expectation on the part of the Respondent.

20.Furthermore, the assessment to be conducted on the Applicant as a wife of the Deceased, is not just whether she had been maintained by the Deceased in the past. This point has been covered above.

21.Counsel for the Applicant relies on the case of LYYC v CHL and CSMS [2019] HKFLR 166, quoting therefrom that regarding whether the applicant was maintained by the deceased, “there are factual disputes that cannot be resolved by affidavit evidence alone” (§17) and “[the] Judge was correct in holding that this question should be deal with at trial” (§19). I agree that this is applicable to this case and there are issues which will need to be addressed at trial after production of more evidence from both parties.

22.I see no merits on this intended ground, nor chance of success on appeal.

Ground 5: “In granting leave (by primarily finding that A has raised triable issues), the Court has also ignored or that the Court has placed insufficient weight on the wish expressed by the Deceased under the Will and also under the 2016 Will. The Court has thus impermissibly substituted what the court itself might have thought would be sensible to be the distributions to A”

23.The 2016 Will has been superseded by the 2019 Will.

24.Our Legislature has entrusted the court with a discretion to direct a deceased’s estate other than in accordance with the deceased’s testamentary wishes. The very nature of a claim under the Ordinance gives jurisdiction (and permission) to the Court to do precisely this, whereupon the Court is to assess the evidence and exercise its discretion as guided by the legal principles.

25.The Respondent’s intended ground of appeal challenges the very basis of the intention of the Ordinance, and in my view cannot be meritorious and will have no prospect of success on appeal.

Conclusion

26.The Respondent has asked for leave to appeal against my decision based on a misconceived notion of the rights of a surviving spouse under the Ordinance, and have expected the Court to conduct a premature assessment of the merits of the Applicant’s claim. I am not of the view that the Respondent has identified in his Notice of Appeal any grounds with any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted.

27.The Respondent’s leave to appeal application is therefore dismissed.

Costs

28.I see no reason why costs should not follow the event, and accordingly make the Order that the Costs of this Leave to Appeal application be to the Applicant. This to be Costs Order nisi to be made absolute 14 days hereof.

Ms Lily Yu instructed by Yu Sun Yau Mak & Lawyers for the Applicant

Mr Vincent Chen instructed by Carol Lam & Co. for the Respondent