Au Yeung Oi Hing v. Chan Chiu Hung

IN THE HIGH COURT OF JUSTICE

PROBATE JURISDICTION

ACTION NO. 3 OF 1976

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Coram: Li, J.

Date of Judgment: 7th December, 1976

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JUDGMENT

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1. On the 17th of February, 1974 one Leung Ha-lui died leaving a husband by the name of CHAN Chiu-hung, the defendant, an adopted daughter, an adopted son and an aged mother.

2. Prior to the death, the said Leung Ha-lui made a will (thereinafter referred to as the English will) on the 22nd of October, 1973 appointing her intimate friend Au Yeung Oi-hing, the plaintiff, as the sole executrix and sole beneficiary of her estate consisting of some cash deposit and leasehold properties. The will is a simple one and it is in the terms of Document 3 of the agreed bundle. It reads:

"I, LEUNG HA LUI of No. 6 Nanking Street, 8th Floor, Kowloon in the Colony of Hong Kong, Married Woman hereby revoke all former Wills and declare this to be my last Will.

I GIVE all my real and personal property to my friend AU YEUNG OI HING and APPOINT her the sole Executrix of my Will."

3. Relying on Document 3, the English will, the plaintiff applied for probate and the defendant entered a caveat to contest the English will. For this reason the plaintiff starts this action to have the will established.

4. The defence is that the will is invalid for a variety of reasons. It is said that at the time of the execution the testatrix Leung Ha-lui was not of sound mind, memory or understanding. It is alleged that the English will was obtained by the plaintiff by undue influence. It is alleged that the deceased at the time did not know or approve of the contents of the English will. It is also alleged that the English will is not effective with the intention to dispose of the property in favour of the plaintiff. It is also alleged that there was a later Chinese will directed to an unknown person. Lastly, it is alleged that the plaintiff on the 1st of March, 1974 agreed with the defendant in writing to renounce her right to apply for the grant of probate and waive her right as to the beneficial interests of the deceased's estate; and alternatively, that there was an oral agreement to the same effect. The defendant, in addition, counterclaims that the Chinese will, Document 5, be made valid and that the defendant should be granted Letters of Administration with the Chinese will attached and that the plaintiff should be ordered to renounce her right.

5. In reply and in defence to the counterclaim, the plaintiff joins issue with the defendant and denies the validity of the agreement dated the 1st of March, 1974 on the ground that it was made under duress and alternatively it is alleged that the oral agreement is also invalid and ineffective as there is not sufficient memorandum in writing to render such an oral agreement enforceable.

6. Having heard the evidence of both parties and having heard counsel, I have come to the conclusion that first of all, when the English will was executed, the deceased Leung Ha-lui was of sound mind, understanding and memory and that she knew the contents and intended to bequeath and devise all her property to the plaintiff.

7. I have come to this conclusion on the evidence of Loong Ting-cheung who said that Leung Ha-lui went to see him twice for the purposes of making the English will and on both occasions she was able to carry on a reasonable conversation. Even after the English will was made Leung Ha-lui dictated to him a draft which was later alleged by the defendant to be the Chinese will. This so-called Chinese will is Document 4 with the translation Document 5 of the agreed bundle. The so-called Chinese will reads simply this:

"Please manage all my estate in a good way and the most important thing is to support my mother who is now seventy-five years old until she dies and also to pay her funeral and testamentary expenses. As to my children's living expenses and their educational fees they should be given education until they complete University level and this is my wish, please do it for me.

Mr. Loong in evidence said he told the deceased Leung Ha-lui that by virtue of the English will, Document 3, she had disposed of everything belonging to her upon her decease. Leung Ha-lui, however, insisted on dictating Document 4 in Chinese to Mr. Loong in a form of draft instructions. Such evidence to some extent has been in a way corroborated by the defendant. First of all, the defendant gave evidence that there was an occasion in early January, 1974 that he was alone with the deceased Leung Ha-lui in St. Teresa's Hospital. He referred to the fact that he suggested to Leung Ha-lui that she should make a will whereupon Leung told the defendant that she had one made but refused to tell the defendant the contents of her will. No reason was given why the Leung should refuse to tell him the contents of the will. He alleged that Leung Ha-lui told him that she had no reason to give everything to the plaintiff without imposing any obligation. However, when the defendant suggested to the Leung that she should change her will, Leung refused to do so. Thus up to January 1974 Leung Ha-lui was compos-mentis she was clear enough in mind to remember that she had made a will and she was careful enough not to reveal to the defendant the contents of her will. She refused to change her will showing that she had a mind of her own. She also remembered that she had given the plaintiff everything. All her worry was that the plaintiff should also carry out certain obligations which is understandable as she had in Document 4 expressed the wish that her mother, aged mother, be maintained and her children be educated.

8. I have also come to the conclusion and found as a fact that the English will was not made under undue influence. In this connection I find that the plaintiff and Leung were very close friends. However, that does not mean necessarily that they were lesbians. There is evidence that there was a mutual understanding between the plaintiff and Leung that should either one of them died first, the one who died first would leave her property to the survivor of the two of them. I find that the plaintiff did take care of the Leung not only when she was ill but as early as 1963. However, there was no evidence of any inducement. Mr. Loong Tin-cheung gave evidence that when Leung went to make the will, she went in to his office to make the will alone without anybody interfering. There is no evidence that the plaintiff would have withheld services from the Leung if the English will was not made in the plaintiff's favour. The evidence as to the plaintiff and Leung were lesbians were vague. I do not find that this is really relevant in the matter. Even if they were, it does not mean that there was undue influence in this matter.

9. One thing is clear even on the defendant's evidence. He said that Leung was a person of strong mind and not susceptible to his own influence. If there was any influence on what Leung had done, I observe that it was the conduct of the defendant. They were separated as long ago as 1963. This is evidenced in a document which was signed by the defendant and Leung in Document 1 and with translation in Document 2 which reads as follows:

"Parties to the dissolution of a marriage CHAN CHIU HUNG LEUNG HA LUI we were married in 1958 at Kowloon Marriage Registry and had obtained a marriage certificate. Later on because of a difference of opinion, we did in 1963 separate and each one was to find his or her own living. We now agree that our marriage be dissolved from today. From now on, either party may marry, and neither party shall make any complaint, also we hereby destroy the marriage certificate. From now on neither party can claim maintenance, compensation or making trouble. To avoid a lack of evidence, we hereby sign our respective names herein."

This document is completely invalid as far as effecting a divorce is concerned. However, it does show the sentiment of the parties and at the time when it was written and that document is dated the 27th of May 1968. According to the defendant, Leung was a very strong-minded person and insisted that this document be made. She dictated the document to the defendant who wrote it down. Invalid as it is, it shows the conduct of the parties and relates to the fact that they had separated in 1963. Then Leung went to live with the plaintiff rather than with the defendant. The defendant admitted that throughout the marriage he gave the deceased only about a hundred dollars a month as pocket money. He did not really support her in any other way since 1963. What is also revealing in Document 1 is that there was a mention that there should be no compensation. In other words, as from that date, neither party should have any claim in monetary matters on the other.

10. I find as a fact that the Chinese document, Document 4, the so - called Chinese will is not the last will of the deceased. According to Loong Tin-cheung's evidence the deceased only dictated this document to him as a draft to give some instructions. I also find as a fact that it was not contained in the envelope which ultimately contained the English will, Document 3. The envelope is produced by Miss Loseby, a solicitor of the court, Document 8. This envelope has been endorsed and signed by Miss Loseby as well as the defendant. It reads:

"Opened on 18th Feb. 1974 in my presence - at request of Mr. Chan Chiu-hung - husband of deceased who died on 17th February 1974.

It was countersigned by Chan Chiu-hung on the 18th of February, 1974. The so-called Chinese will in Document 4 was not directed to any person at all. It is just a piece of paper. There is no evidence as to where this Chinese document came from. Admittedly it was made on the 22nd of October 1973, the same date when the English will was made. I accept the evidence of Miss Loseby and reject the evidence of the defendant who said that this Chinese document was found contained in the same envelope as the English will that is in Document 8. Had it been so, would an experienced solicitor like Miss Loseby not mention in the endorsement that there were two documents? Even if Miss Loseby did not do so, I would be surprised that the defendant had not insisted that Miss Loseby made a record on the envelope that such a Chinese document was found inside the envelope. Throughout the evidence, the defendant has told me that he is a person who has some knowledge of the law. If anyone has some knowledge of the law, one would preserve some form of record for evidence.

11. I find that there is no evidence and no proof that Leung Ha-lui, the deceased, signed Document 4 at all. Her name appeared on Document 4 but there is no evidence to prove that she signed it. In fact it appeared from Mr. Loong Tin-cheung's evidence that the deceased did not sign Document 4 in his presence.

12. Arriving at the aforesaid conclusions, I accept the evidence of Mr Loong Tin-cheung, Miss Loseby and reject the defendant's evidence as a fabrication to suit his convenience.

13. These lead of two more issues, namely, whether there was a written agreement on the 1st of March 1974, or alternatively whether there was an oral agreement.

14. I will first deal with the oral agreement. I have come to the conclusion that there is no true oral agreement at all. In this connection I find that there was some form of argument after the contents of the English will were made known to both the plaintiff and the defendant and there was a quarrel. Indeed, according to the defendant's evidence even at the funeral parlour, they talked about this matter. As there were many people in the funeral parlour, they did not pursue the matter further and kept it on reserve. Thus there was no agreement at the funeral parlour. The next thing happened was that on the 1st of March, the defendant presented Document 7 as translated in some form of agreement. To say the least, the effect of this agreement is fantastic. The wish of the deceased in her English will was to be completely ignored. The several persons, including the plaintiff and the defendant and two more of the deceased's friends, were trying to share the spoil of her property.

15. I find that there must have been some form of discussion in No. 6, Nanking Street, on the 8th floor, on that day and in the course of an argument the plaintiff must have used the payment of a hundred thousand dollars as a stumbling - block to deter the defendant from pursuing his claim to administer the estate. It was there and then the defendant bludgeoned the plaintiff into signing Document 7 to renounce her right to administer the estate and renounce her beneficial interests as well. It is alleged that threats were used to force the plaintiff to sign it. I do not find there was sufficient evidence to support that threats were being used. However, the other person, the witness, Leung Yau who gave evidence said that she never heard the conversation between the plaintiff and the defendant on the spot. Enough it is to say that there was no oral agreement up to then, and then the written document No. 7 was signed.

16. I find that the plaintiff's signature on the written document is not sufficiently effective to renounce her right by virtue of the provisions in Section 29 of the Probate and Administration Ordinance. It provides that:

"Any person who is or may become entitled to representation may expressly renounce his right to such representation.

Such renunciation may be made orally on the hearing of any petition or probate action by the person renouncing or by counsel on his behalf, or in writing signed by the person so renouncing and attested by a solicitor or by any person before whom an affidavit may be sworn."

This Document 7 was never witnessed by or attested by a solicitor or by a person to whom an affidavit may be sworn. As such it is completely ineffective.

17. I find that the parties were not content to leave the matter as it stood on the 1st of March. They went to a solicitors firm Messrs. W.K. Poon to have an English agreement made to the same effect, but with the further provisions as to maintenance and education of the deceased's children and the support of the deceased's mother. This document was never signed. Thus, if this document - Document 11 - is relied on, then it has not satisfied the provisions of the Law Amendment and Reform (Consolidation) Ordinance, Chapter 23. Section 5 of the Law Amendment and Reform (Consolidation) Ordinance reads that:

"No action shall be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note there of, is in writing, and signed by the party to be charged..."

It is a true fact that the plaintiff never signed the agreement - Document 11; and Section 6, Sub - section (1) provides that:

"Subject to section 7 -

A disposition of an equitable interest or trust subsisting at the time of the disposition, shall be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing or by will."

There again, as the plaintiff had not signed it, it has not satisfied the requirements of these two sections. Thus whatever oral agreement they might have subsequent to the signing of Document 7 is unenforceable.

18. For these reasons I find that the plaintiff is entitled to rely on the English will, Document 3, and to have the will established and the counterclaim by the defendant must be dismissed; and with costs to the plaintiff.