Re David Antony Croasdale, The Executor of the Estate of Boydell Michael William, Deceased

HCMP 2303/2023

[2025] HKCFI 5669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2303 OF 2023

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J U D G M E N T

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THE APPLICATION

1.The applicant herein is the executor of the estate of the late Boydell Michael William (“the Deceased”), who resided alone in the Philippines after his retirement until his passing on 24 August 2020.

2.By an Ex Parte Originating Summons filed on 5 December 2023, the applicant applied to the Court for the determination of a number of questions relating to the administration of the Deceased’s estate. The application was since then amended on 16 September 2024.  I will refer to the questions raised after I have set out the factual background of the application below.

FACTUAL BACKGROUND

3.As aforesaid, the Deceased moved to live in the Philippines after his retirement.  At all material times, he resided alone.

4.The Deceased made his last will on 16 April 2019 (“the Will”).  Apart from appointing the applicant as the sole executor and trustee of his estate, the Will also provided in paragraph 6 thereof that:

“I DIRECT that my Trustee shall hold all of my residuary estate in trust for the person(s)  I shall name in my latest Letter of Wishes that I may prepare and provide to my Trustee during my life time I DIRECT that my Trustee shall distribute such gifts as I may particularise in my latest Letter of Wishes to such person(s)  as I may name therein […]”

5.The first letter of wishes from the Deceased was actually provided by him to the applicant even before the execution of the Will.  It was written by him in the applicant’s presence, while they were at the applicant’s home in Hong Kong in around 2017 or 2018 (“the 2017/18 Letter of Wishes”).  The 2017/18 Letter of Wishes read:

“20 PC Jack 091xxx

20 PC Tina 935xxx

10 PC Malou 918xxx

5 PC Bernadett 903xxx 907xxx

5 PC Woodland Staff

5 PC Benny Woodland 919xxx

5 PC Joy 908xxx

15-20 PC Girls and Villagers Spam 930xxx

20 PC You + Admin”[1]

6.According to the applicant, the Deceased was well aware that the percentages of entitlement stated in the 2017/18 Letter of Wishes do not add up to 100%.  However, the Deceased just asked the applicant to work the matter out himself.

7.On 25 April 2020, the applicant received a text message from the Deceased (“the April 2020 Text”)  by which he revised the list of beneficiaries.  The message reads:

“20 percent david 3 perfent mae hk 20 percent tina 092xxx 20 percent jack 091xxx 10 percent to woodland staff 3 percent alger woodland 939xxx 3 percent janet 909xxx 3 percent bernadette woodland 938xxx 3 percent benny woodland 919xxx”[2]

8.The Deceased passed away on 24 August 2020.

9.On 20 June 2022, the applicant received an email from Ms Maria Cristina M. Dela Paz (“Tina’s List”), also known as Tina (“Tina”), who was one of the beneficiaries named by the Deceased in both the 2017/18 Letter of Wishes and the April 2020 Text.  The said email reads:

“[…] Here are the list of Mike’s beneficiaries po.

David 20%, Ate May David 3%, Jack 5%, Woodland staff 8%, Aljur 2%, Tina 40%, Kim 2%, Paul 4%, Malou 1%, Bernadette l%, Janet 3%, Newspaper l%, Benny 2%, Maya-May-Sam 1%, Jorge 2%, Angel 1%, Scott-Mushroom-Jelly 2%, Trike-Tipgraber-Tatay woodland 1%, Tatay Willy-Tatay Hash-Tatay Lito 1%.

BDO Accounts

Tina 70%

Janet 15%

Woodland staff 15%”

10.Tina alleged that Tina’s List was prepared pursuant to a text message which the Deceased sent her on 4 August 2020 (“the Deceased’s Alleged August 2020 Text to Tina”).

11.On 21 June 2022, the applicant received another message from Mr Paul Hockley (“Paul”).  In the said message, the applicant was provided with a list of beneficiaries (“Paul’s List”)  which was allegedly sent by the Deceased to Paul on 4 August 2020 by text message (“the Deceased’s Alleged August 2020 Text to Paul”).  Paul’s message reads:

“Hi David

Mike texted me this list on August 4

But then Tina said he re wrote it

and changed again.

But I think this confirms Jack’s

change from what you had.

david

20, ate may

david3, jack5, woodland10, aljur2, tin

a40, kim2, paul2, malou1, bernadette

1, janet5, newspaper1, benny2, maya/

may/sam(1)jorge2, angel1, trike/

tipgraber,tatay(1)  tatay willy/atay

hash/tatay lito(1)”

12.The applicant was understandably confused by the messages from Tina and Paul.   He has therefore commenced this administration action to seek directions from the Court as to how he should distribute the Deceased’s estate.  

PROCEDURAL BACKGROUND

13.Before the commencement of this action, the applicant’s solicitors had sent letters before action dated 5 May 2023 to various potential beneficiaries of the Deceased’s estate, including Paul and Tina, and enquired with them whether they were minded to contest the intended application to the court.

14.Paul replied by email on the same day.  While he seemed to be complaining about the delay on the part of the applicant to distribute the Deceased’s estate, he did not indicate whether he would contest the proceedings.

15.Tina had also replied, but she did not state whether she would contest these proceedings.

16.As mentioned above, this action was commenced on ex parte basis.  Although both Paul and Tina, who suggested that the Deceased had prepared further letters of wishes after he sent the April 2020 Text, had been informed by the applicant’s solicitors about the intended commencement of these proceedings, this Court took the view that Notice of Action under Order 15 rule 13A of the Rules of the High Court should be issued to them so that they would have full knowledge of the relief sought by the applicant herein.  Directions were given accordingly on 3 April 2024, and they had subsequently been duly served with a Notice of Action together with various court documents filed in this action including the Amended Ex Parte Originating Summons filed on 16 September 2024.  Neither of them had filed any Acknowledgement of Service.  They are therefore bound by this Judgment as if they were parties hereto.

THE DIRECTIONS SOUGHT

17.By virtue of the Amended Ex Parte Originating Summons filed on 16 September 2024, the applicant has asked the Court for determination of the following questions:

(1)  Whether any of the letter of wishes received by the applicant after the date of the Will can constitute a letter of wishes as referred to in the Will and/or form part of the Will such that the applicant should distribute the Deceased’s estate accordingly;

(2)  If the answer to question (1)  above is negative, whether the applicant should distribute the Deceased’s estate as per the 2017/18 Letter of Wishes;

(3)  If the answer to question (1)  above is affirmative, whether text messages can constitute valid letters of wishes under the laws of Hong Kong and/or can form part of the Will;

(4)  If text messages can constitute valid letters of wishes, whether the Deceased’s Alleged August 2020 Text to Tina is valid and constitute the last letter of wishes of the Deceased and/or forms part of the Will;

(5)  If text messages can constitute valid letters of wishes, and the Deceased’s Alleged August 2020 Text to Tina is not valid, whether the Deceased’s Alleged August 2020 Text to Paul is valid and constitutes the last letter of wishes of the Deceased and/or forms part of the Will;

(6)  If text messages can constitute valid letters of wishes, and neither the Deceased’s Alleged August 2020 Text to Tina nor the Deceased’s Alleged August 2020 Text to Paul is valid, whether the April 2020 Text is valid and constitutes the last letter of wishes of the Deceased.

DISCUSSION

18.In my view, the determination of the questions raised by the applicant turns on the interpretation of Clause 6 of the Will which is quoted in [4] above. 

19.Pursuant to the said clause, a valid letter of wishes which the applicant should give effect to must be:

(1)  prepared by the Deceased;

(2)  provided to the applicant during the Deceased’s lifetime.

20.Apart from the above, the Will did not specify any other requirement.

21.From the Will, it also appears that the Deceased was anticipating that he was going to provide the applicant with further letter(s)  of wishes because:

(1)  Although the Deceased had already drafted the 2017/18 Letter of Wishes by the time of the Will, he did not refer to it at all in the Will;

(2)  While he had only prepared one letter of wishes prior to the date of the Will, he referred to the “latest” letter of wishes.

22.With the above in mind, I turn to consider the questions raised by the applicant as follows:

(1)  First of all, in the circumstances of the present case, I cannot see why a valid letter of wishes must necessarily be received by the applicant before the execution of the Will;

(2)  Text messages can in principle constitute valid letters of wishes so long as the Court is satisfied on the evidence that those messages were originated from the Deceased;

(3)  The Deceased’s Alleged August 2020 Text to Tina is invalid and does not constitute the latest letter of wishes of the Deceased because, even if it was indeed originated from the Deceased, the text had not been sent (whether directly or indirectly)  by the Deceased to the applicant during the lifetime of the Deceased;

(4)  The Deceased’s Alleged August 2020 Text to Paul is invalid and does not constitute the latest letter of wishes of the Deceased because this Court is not satisfied that such a text ever existed.  In any event, even if it existed and was indeed originated from the Deceased, the text had not been sent (whether directly or indirectly)  by the Deceased to the applicant during the lifetime of the Deceased;

(5)  The April 2020 Text is valid and constitutes the last letter of wishes of the Deceased.

ORDER

23.The determination of the questions raised by virtue of the Amended Ex Parte Originating Summons is therefore as follows:

(1)  Letter of wishes received by the applicant after the date of the Will can constitute a letter of wishes as referred to in the Will such that the applicant should distribute the Deceased’s estate accordingly;

(2)  Text messages can constitute valid letters of wishes under the laws of Hong Kong;

(3)  The text message purportedly sent by the Deceased to Maria Cristina M. Dela Paz on 4 August 2020 is invalid and does not constitute the last letter of wishes of the Deceased;

(4)  The text message purportedly sent by the Deceased to Paul Hockley on 4 August 2020 is invalid and does not constitute the last letter of wishes of the Deceased;

(5)  The text message sent by the Deceased to the applicant on 25 April 2020 is valid and constitutes the last letter of wishes of the Deceased.

(6)  Questions (1B)  needs not be determined.

24.It is further directed that the applicant is at liberty to pay into Court any share of the Deceased’s estate insofar as the identity of any beneficiary who is entitled thereto cannot be verified.

COSTS

25.The applicant’s costs be paid out of the Deceased’s estate, and such costs be summarily assessed on trustee basis pursuant to Order 62 rule 9A(1)(a)  of the Rules of the High Court at $420,000.

Mr. Ronald Pang, instructed by Hugill & Ip, for the applicant