Dong Li v. Lam Pu Qiao

HCMP 663/2018

[2026] HKCFI 4299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 663 OF 2018

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(Heard Together)

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DECISION ON COSTS

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A.      Introduction

1.On 27 May 2026, I handed down the judgment (the “Judgment”)[1] in respect of the present action ([2026] HKCFI 2612). I accepted the Plaintiff’s case and rejected the Defendant’s case. Accordingly, I: -

(1)     ordered that the grant of probate in favour of the Defendant based on the 2014 Will be revoked; and

(2)     propounded the 2015 Will and granted probate in respect thereof in favour of the Plaintiff[2].

2.I also made a costs order nisi that the Plaintiff’s costs in these proceedings (including all costs previously reserved) be paid by the Defendant on a party-to-party basis to be taxed if not agreed (with certificate for 1 counsel)[3].

3.By summons dated 9 June 2026, the Defendant applied to vary my costs order nisi. The Defendant proposed that there be a costs order absolute as follows: -

(1)     The Plaintiff’s costs in these proceedings be paid out of the estate of the Deceased, to be taxed on a party-to-party basis if not agreed.

(2)     The Defendant shall bear her own costs in these proceedings, and she shall not be entitled to seek costs from the Deceased’s estate and/or the Plaintiff.

4.The Defendant has filed an affirmation dated 9 June 2026. In gist, the Defendant reiterated, inter alios, that based on her interaction with the Deceased, her understanding regarding the Deceased’s testamentary intention was different from the contents of the 2015 Will and that the Deceased was a patient who suffered from Parkinson disease. Relying on these assertions, the Defendant stressed that she bona fide contested the present proceedings and that there were matters to be investigated.

B.      Legal Principles

5.In Chiu Man Fu & Ors v Chiu Chung Kwan Ying (HCAP 9/2005, 28 May 2012), Poon J (as Poon CJHC then was) helpfully summarized legal principles as follows: -

“3. The law on costs in probate actions is well settled : see Ribeiro PJ explained in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800, at paras 10 – 19. For present purposes, it is sufficient to give a brief summary as follows.

4. The award of costs as between the parties in contested probate proceedings is in the court’s discretion. The general rule is that when the opponent to a will fails, costs should follow the event unless the case falls within one of the two exceptions:

(1) The litigation is caused by the conduct of the testator or the residual beneficiary, in which case the costs would come out of the estate; or

(2) The circumstances lead reasonably to an investigation of the will’s validity, in which case there should be no order as to costs.

5. To invoke the exceptions, the unsuccessful opponent is entitled to rely on the facts and view them as they were presented to him. But he must have also taken all proper steps to inform himself as to the facts of the case before undertaking the proceedings, failing which the general rule of costs following the event may well apply.

6. Even if the case prima facie falls within one of the two exceptions, if the opposition to the will goes beyond putting the proponent to strict proof of its validity and takes the form of hostile litigation, the general rule of costs following the event is likely to apply.”

C.      Deliberation: the Defendant Prosecuted a Hostile Litigation

6.I accept that in light of his reconciliation with the Plaintiff, the Deceased changed his testamentary intention in 2014 and 2015. Due to the Deceased’s unsatisfactory physical condition, the Defendant might have doubts as to whether the 2015 Will truly represented the Deceased’s testamentary wish.

7.However, even assuming that there is a prima facie case that the 2 exceptions apply, I am of the view that the Defendant had unreasonably and unjustifiably fought a full-blown litigation in a hostile manner. In my view, had a reasonable person in the Defendant’s position sensibly considered the facts, evidence and objective circumstances surrounding the 2014 Will and the 2015 Will, she should have accepted that the 2015 Will is the true last will of the Deceased, and she would not have contested the present proceedings till the end.

8.First of all, throughout the proceedings, the Defendant was adamant that the Deceased did not have the requisite mental capacity to make the 2015 Will. However, the reality was such that there was no basis to doubt and/or challenge the Deceased’s testamentary capacity at all. In this connection: -

(1)     Insofar as the expert evidence is concerned, as elaborated in paragraphs 88 to 97 of the Judgment, in light of the opinion expressed by the parties’ experts, there is simply no evidential basis to suggest that the Deceased did not possess the requisite testamentary capacity at the times when the 2014 Will and the 2015 Will were executed. Indeed, the Defendant’s own expert (namely Dr Choi) expressly opined that despite mild cognitive impairment, a person in the Deceased’s position would still be in a position to make personal decisions and hence capable of fulfilling the 3 criteria of Bank v Goodfellow.

(2)     Insofar as the factual evidence is concerned: -

(a)     As elaborated in paragraph 102 of the Judgment, there is contemporaneous documentary evidence from the solicitors who handled the 2015 Will showing that the Deceased did give instructions that the entirety of his estate be bequeathed to the Plaintiff and their Two Children in equal shares. There is not a shred of evidence showing that Mr Eddie Chui and/or Ms Man (ie the solicitors) would have concocted these instructions out of the blue.

(b)     Furthermore, as elaborated in paragraph 103 of the Judgment, there is also ample contemporaneous medical evidence showing that despite his physical fragility, the Deceased was capable of communicating his wishes to others. Although his speeches were slurred, they were comprehensive, coherent and relevant.

(3)     In the premises, there was no basis to contend that the Deceased was a person with no testamentary capacity. The Defendant’s stance and contentions were not only hostile, but also unreasonable and unmeritorious.

9.Second, the Defendant contended that the contents of the 2015 Will were inexplicable, and, as such, the Deceased could not have known and approved the same. As elaborated in paragraphs 128 to 131 of the Judgment, I am of the view that the Defendant’s contentions were wholly unreal and unmeritorious. In light of the overwhelming contemporaneous documentary evidence that is hardly controvertible, there is no sensible reason why the Defendant refused to accept the facts that the Deceased and the Plaintiff had reconciled and that this was the reason why the Deceased made the 2015 Will. In this connection: -

(1)     As elaborated in paragraphs 122 and 126 of the Judgment, there is a series of contemporaneous medical records showing that as the Plaintiff wholeheartedly and dedicatedly took care of the Deceased after the 5 August 2015 Incident, their relationship had drastically improved. Meanwhile, the Deceased’s relationship with the Defendant had deteriorated. In particular, the Deceased did tell a medical social worker that he “wanted his wife [ie the Plaintiff] to handle his affairs instead of his Eldest Daughter [ie the Defendant]” (emphasis added). Further, the Deceased also repeatedly told the doctors that his relationship with the Plaintiff had improved, and he wanted to go back home and continue to live with her. These medical records, which prove the reconciliation between the Deceased and the Plaintiff, were disclosed to the Defendant.

(2)     As elaborated in paragraph 120 of the Judgment, even on the account of events provided by the Defendant, she admitted that during the 5 August 2015 Incident, the Deceased, in tears, indicated that he would like to return to the Matrimonial Home to live with the Plaintiff. In my view, the Defendant knew and ought to know the Deceased’s preference.

(3)     Insofar as the explicability of the 2015 Will is concerned, in paragraph 132 of the Judgment, it was pointed out that the Deceased had already funded the Defendant to purchase the Kingswood Villas Property. Bearing in mind that the Matrimonial Home has been the residence of the Plaintiff and the Two Children, there was nothing unusual about the fact that the Deceased would bequeath the same to the Plaintiff under the 2015 Will.  In my view, the Defendant knew and ought to know that this was the case.

(4)     For all the above reasons, I am of the view that the Plaintiff knew, and should have known, that the Deceased and the Plaintiff had reconciled and that the Deceased’s testamentary decision relating to the 2015 Will was wholly explicable. I am not of the view that the Defendant’s stance and contentions on the issue of knowledge and approval were reasonable.

10.Third, the Defendant’s contention that the 2015 Will was procured by the Plaintiff’s undue influence is almost completely hollow. Whilst the Defendant’s case is not borne out by any direct evidence at all (see Judgment, para 149), it is also contradicted by the fact that the Plaintiff and the Deceased had reconciled (see Judgment, para 148) as well as the objective medical evidence, which shows that the Deceased was certainly capable of communicating his wishes to others (see Judgment, para 150). As pointed out, the Defendant knew and should have known that the Deceased and the Plaintiff had reconciled. Further, throughout the proceedings, the Defendant had access to the relevant medical records. I am not of the view that it was justifiable for the Defendant to pursue a case based on alleged undue influence.

11.For completeness, I should also point out that there is a strong impression that the Defendant contested these proceedings for the purpose of advancing her own financial interests. It was true that during cross-examination, the Defendant belatedly asserted that if the court propounds the 2014 Will, she would still allow the Plaintiff and the Two Children to live in the Matrimonial Home, unless the Plaintiff remarries and until the Two Children become fully independent (see Judgment, para 132).  However, the Defendant’s stance and assertion were flatly contradicted by her counterclaim seeking to evict the Plaintiff and the Two Children from the Matrimonial Home.  Indeed, in her witness statement, the Defendant’s stance was that the Deceased decided to bequeath the Matrimonial Home to her under the 2014 Will absolutely to improve her livelihood and to make up for what he did to Madam Leung (ie the Defendant’s mother).  Furthermore, by letter dated 13 October 2025[4], the Defendant, via solicitors, proposed that the interests in Matrimonial Home be transferred to the Plaintiff for a proposed consideration[5]. In the circumstances, I am unable to form a view that the Defendant simply bona fide wished the court to investigate the validity of the 2015 Will.  Had this been the case, the Defendant and her former legal representatives would not have pursued the bunch of unmeritorious contentions that were canvassed hereinabove and in the Judgment.  In my view, when the Defendant contested these proceedings, one of her foremost objectives was to advance her own financial interests.

D.      Conclusion and Disposition

12.For all the above reasons, I conclude that: -

(1)     The Defendant had failed to reasonably and sensibly assessed the facts, evidence and objective circumstances surrounding the 2014 Will and the 2015 Will, as a result of which a bunch of unmeritorious contentions (which the court eventually rejected) were raised. 

(2)     The Defendant had unreasonably and unjustifiably fought a full-blow litigation in a hostile manner, and it can be said that she was a hostile litigant. There are sound reasons to believe that the Defendant’s agenda was to advance her own financial interests.

13.In the premises, I refuse to vary the costs order nisi under my Judgment.

14.I am of the view that costs should follow the event.

15.The Plaintiff, who is a widow and who shoulders the responsibility of raising and/or maintaining the Two Children, has incurred substantial legal costs in these proceedings. As pointed out, the Defendant’s stance is hostile, and the contentions that she pursued in these proceedings were unmeritorious and should not have been raised in light of the evidence and objective circumstances. In the premises, justice dictates that the Plaintiff, who is the successful party, should recover her costs from the Defendant.

16.I make a costs order absolute that that the Plaintiff’s costs in these proceedings (including all costs previously reserved) be paid by the Defendant on a party-to-party basis to be taxed if not agreed (with certificate for 1 counsel[6]).

17.I also order the Defendant to pay the Plaintiff’s costs in respect of her summons dated 9 June 2026, summarily assessed at HK$45,000.

18.Lastly, I thank Ms Winnie Li for her assistance.

Ms Winnie Li, instructed by M/s Heyman Tang & Wong, for the Plaintiff (by original action) and the Defendant (by counterclaim)

The Defendant (by original action) and the Plaintiff (by counterclaim) appeared in person

The 2^nd Defendant: All person(s) in occupation of Flat 7 on 14/F of Block B, No 19 Ngan Shing Street, Yue Tin Court, Shatin, New Territories, acting in person and absent