Re Nora Law

HCAG931/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

NON-CONTENTIOUS APPLICATION FOR GRANT NO. 931 OF 2004

______________________

Coram :  Master J. Wong in Chambers

Date of Hearing : 4 September 2004

Date of Handing Down Written Decision in Court : 4 November 2004

_____________

D E C I S I O N

_______________

1.On 12 May 2003, Madam Nora Law died domiciled in Canada.  She left a will made on 28 May 2002 whereby her son Mr. Peter Law (“Mr. Law”) was appointed as the sole executor thereof. 

2.By a power of Attorney dated 25 November 2003, Mr. Law nominated the senior partner of Messrs. Lau, Wong & Chan, Mr. S.W. Lau, to be his lawful attorney in Hong Kong to apply for a grant with will annexed under rule 29(a) Non-Contentious Probate Rules (Cap. 10) (“NCPR”).

3.The application was lodged on 5 February 2004 and requisitions were raised in its usual way.  On 25 February 2004, among other things, requisition no. 2 stated that:

“Please clarify whether the original Will of the deceased has been proved and deposited in the foreign court; if so, please file a court sealed and /or certified copy Will for proof in Hong Kong.”

4.On 13 April 2004, a certified copy of the original Certificate of Appointment of Estate Trustee with a copy Will (emphasis added) (“the Certified Canadian Grant”) was submitted to purport to comply with requisition no. 2.  The Probate Registry declined to accept it and further raised requisition no. 6 insisting on the latter part of requisition no. 2.  Mr. S W Lau, on the other hand, argued that the Certified Canadian Grant sufficed.  The matter was referred to me and a hearing was held on 4 September 2004 by way of special appointment.

5.Mr. Law submitted, by his letter of 3 September 2004, that:

“4. I have pointed out in my letter of 17th June 2004 that the certificate issued by the Toronto Court authenticated two documents, (1) the grant with the will annexed and authenticated one document, i.e. the grant but she did not explain why she did not accept my construction of the certificate i.e. why the words “and will” were included in the certificate.  She did not give any reason for her opinion.

5.   If the certificate is examined closely, it is a standard form used to certify a grant of probate or letters of administration and described itself as “Certificate of Grant”.  It has words already printed therein, particularly the words “ granted in the estate of and as such is more suitable to certify a grant (or the Certificate of Appointment) rather than a will with is usually to be proved but not granted.  However the Toronto Court Official chose this form to certify a will and for this purpose he caused the words “and will” to be inserted there.  Otherwise we cannot explain by the words “and will” are added.

6.   One of the canons of constructions of a document is that the court should lean towards that construction which validates the instrument.  In Langston v Langston (1834) 2 CL. & 194, Lord Brougham said:

“If there are two modes of reading an instrument, and one destroys the instrument and the other preserves it, it is the rule of law and of equity following the law in this respect … that you should lean towards that construction which preserves, rather than towards that which destroys.  Ut res magis valeat quam pereat  is a rule of common law and common sense, and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as its is, or with a somewhat larger and more liberal construction, any by so supplying words as to read it in a way in which you have every reason to believe that the maker of it intended it should stand.  Thus, again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which he per incuriam  omitted, that which instead of destroying preserves the instrument, and, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention.

My view is that even without the help of this canon, the certificate should also be regarded as having authenticated the will attached to the Certificate of Appointment.”         

6.Upon careful consideration of the matters raised by Mr. S W Lau, I have come to the view that the two requisitions are rightfully raised.  They have not been complied with by the lodging of the Certified Canadian Grant.  Nonetheless, on a without creating precedent basis, the requisitions are hereby taken off in the circumstances.  My reasons appear as follows:

(a)    R53 NCPR, provides that

“… Provided that where a will is not available owing to its being retained in the custody of a court justice outside Hong Kong or of an official of a government other than the Government of the Hong Kong Special Administrative Region, a duly authenticated copy of the will may (emphasis added) be admitted to proof without any such order as aforesaid.”

(b)    However, instead of “a duly authenticated copy of the will” was produced, the Certificated Canadian Grant enclosing a “copy will” was submitted.

(c)    During the hearing, upon my enquiry, Mr. Lau produced a copy letter dated 8 March 2004 and written by him to Mr. Law.  It reads, inter alia, that:

“2. The Probate Court also requests a copy of the will and also a copy of the grant of Probate certified by the Canadian Court to be a true copy filed with the Canadian Court.  The reason for a certified copy will in isolation is that it will be annexed to the Hong Kong grant and the Canadian grant containing will will be unsuitable for this purpose.”

(d)    It therefore became clear that Mr. Lau did understand the requirement as per r53 NCPR and it was only Mr. Law or the Canadian Court who failed Mr. Lau and the Probate Registry.  However, it was argued that r53 NCPR had been complied with.

(e)    With respect, I do not agree with the submission as a matter of principle.  R53 NCPR requires “a duly authenticated copy of the will”.  It cannot be something less than that.  The answer is simple.  I do not consider that we need difficult legal principles to assist us in this respect.

(f)    Having said that, I should further add that r53 says only “may” and not “must” or “shall”.  Hence, it is not a mandatory requirement that a duly authenticated copy will has to be admitted.  The legislation states the usual method and requirement in the rule, and allows the Registrar to accept other forms of proof.   The crux really boils down to a “true and proper” copy of the will shall be submitted to the Probate Registry in Hong Kong.

(g)    In my experience, the problem faced by Mr. Lau is not uncommon because different courts and authorities in different jurisdiction have different practice over the authentication and probate matters.  In my view, though only a copy will is attached to the Certified Canadian Grant, I have no doubt that it is a true and proper copy of the original will despite it does not satisfy r53 NCPR.  Without creating a precedent and binding the Registrar on any other application, the aforesaid 2 requisitions are waived in the circumstances.  It will be a waste of time and costs for the matter to be dragged on further.

7.Finally, perhaps, I should reiterate that the legislature has delegated the duty to this Court to make sure that the grant is made only to the proper person.  The power or obligation to raise requisitions will be exercised judicially in accordance with rules and established practices.  The practitioners shall understand the requirement of the Probate Registry.  Useful reference may be located in the document “Common requisitions – Probate Registry” published in December 2003.  If the requisition(s) cannot be complied with despite all possible efforts have been spent, the applicant should always come to the Court explaining the problems and difficulties.  I am sure that Probate Registry will adopt a reasonable and practical approach to resolve the matter.

8.With the kind agreement from Mr. S. W. Lau, I will hand down this written decision in open court.

Mr. S W Lau, the applicant, senior partner of Messrs. Lau, Wong & Chan