Wu Man Shan v. The Registrar of Probate

HCMP 2683/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2683 OF 2005

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BETWEEN

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Coram : Before Master J. Wong  in Chambers

Date of Hearing: 13 January 2006

Date of Decision: 14 February 2006

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D E C I S I O N

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Introduction

1.Practitioners often help their clients to prepare the Wills.  No matter how careful a solicitor may be, mistakes happen at times.  To make good the mistakes, section 5(2) the Wills Ordinance (Cap. 30) (“WO”) was introduced in 1995 to cure the defects in form or execution of the Wills.  Further, section 23A WO was added so that a mistake contained in the context of the Wills may be rectified.

2.Regarding S23A WO, since no corresponding rules has been adopted, solicitors usually adopt one of the following procedures:

(a) an ex-parte originating summons under MP proceedings seeking reliefs from a Judge in Chambers,

(b) an ex-parte originating summons under MP proceedings seeking reliefs from a Master in Chambers, or

(c) an ex-parte application within the Non-Contentious Probate application to the Registrar.

3.Which one is correct and better?  Such question appears before me in the 10th application on the Non-Contentious Probate List.

Background

4.In about May 2000, the Deceased and her husband gave instructions to their solicitor Mr. B. Chiu to prepare 2 similar Wills for themselves.  The Wills were prepared and executed on 11 August 2000.  Both the Deceased and her husband named their eldest son, the applicant herein, as the sole executor and trustee of the Wills.

5.On 5 July 2005, the Deceased passed away.  A certificate of exemption was issued by the Estate Duty Office on 30 September 2005.  When the applicant brought along the Deceased’s Will with the Registry, the officer found a mistake in it, namely, the “Chinese Name” of the Deceased “司徒仲娟” was written as that of her husband “胡振聲” in the interpretation clause.

6.Mr. Chiu then on 8 December 2005 issued the present proceedings seeking to rectify the above mistake.

(a) “The Registrar of Probate” was named as the Respondent.

(b) The following reliefs were sought:

“(i) the Last Will and Testament of SETO CHUNG KUEN, deceased be rectified to the Registrar of Probate Registry;

(ii) the Applicant do deliver a sealed copy of the order of rectification within 28 days of the date of the order of rectification delivered to the Registrar of Probate for filing;

(iii) the Applicant do upon rectification cause the Last Will and Testament of SETO CHUNG KUEN, deceased to file with the Registrar of Probate the Oath by Executor, Certified true copy Death Certificate of the deceased and other E.D. papers in accordance with the Probate and Administration Ordinance, and

(iv) the Applicant do pay the Respondent the costs of this application.”

(c) Mr. Chiu also filed an affidavit to apply ex-parte the above redresses.

7.The ex-parte affidavit was referred to me as the Probate Master and I invited Mr. Chiu to make an appointment with me on the Non-Contentious Probate List to discuss the matter.  He did so and further prepared a skeleton submission, chronology and family tree to assist me to understand his case.  Upon consideration of these documents and hearing from him further, I had no doubt that the mistake was a clerical one, namely, when the secretary or clerk was preparing the two Wills on computer, the Chinese name of the husband was inadvertently left in the interpretation clause of the Will of the Deceased.

8.Nonetheless, the question on the procedures for rectification of Will application remains to be decided.  For our purpose, I set out the followings:

(a) Section 23A WO is created by adopting the identical provisions in section 20 of the Administration of Justice Act 1982 (“AJA”) in England.  Section 23A(1) WO provides that:

“(1)   If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.”

(b)To regulate the operation of S20 AJA, the English legislature put down rule 55 in their Non-Contentious Probate Rules 1987:

“55.   Application for rectification of a will.—(1) An application for an order that a will be rectified by virtue of section 20(1) of the Administration of Justice Act 1982 may be made to a district judge or registrar, unless a probate action has been commenced.

(2)  The application shall be supported by an affidavit, setting out the grounds of the application, together with such evidence as can be adduced as to the testator’s intentions and as to whichever of the following matters as are in issue:—

(a)    in what respects the testator’s intentions were not understood; or

(b)   the nature of any alleged clerical error.

(3)  Unless otherwise directed, notice of the application shall be given to every person having an interest under the will whose interest might be prejudiced by the rectification applied for and any comments in writing by any such person shall be exhibited to the affidavit in support of the application.

(4)  If the district judge or registrar is satisfied that, subject to any direction to the contrary, notice has been given to every person mentioned in paragraph (3) above, and that the application is unopposed, he may order that the will be rectified accordingly.”

(c) The Hong Kong legislature has not adopted the above rule 55 in our NCPR.

(d) Fortunately, we have section 72(2) of the Probate and Administration Ordinance (Cap. 10) (“PAO”) to save our position generally.  The provision states that:

“(2)  In all such business in respect of which no provision is made by probate rules and orders, the practice and procedure for the time being in force in the Probate Registry in England shall be deemed to be in force in the court and the Registry.”

(e) Hence, in my view, the said rule 55 is still applicable to us.

9.In the circumstances, I am of the opinion that:

(a) If the application for grant has been filed with the Probate Registry, rectification of the Will may be made to the Registrar within that application as per rule 55 in England.

(b) On the other hand, if application for grant has not yet been filed, ex-parte MP proceedings should be issued, with or without notice to the interested parties, depending on the circumstances.  The Registrar or the Master does have the necessary jurisdiction to deal with the matter.

(c) The Registrar or the Master dealing with the matter under (a) or (b) above, may refer the matter to the Judge pursuant to section 6(2) PAO or O.32 r.12 of the Rules of the High Court (Cap. 4A(“RHC”)) in suitable cases.

(d) When a probate action has been commenced, any application for rectification of a Will shall be brought by way of separate MP proceedings before a Judge in chambers with notice to all interested or affected parties.

10.Applying the above analysis to our case, the subject mistake is clerical and trivial.  No one will be prejudiced by an order of rectification for the same. It can therefore be made ex-parte without reference to others. Further, since no application has been made for the grant, rectification is to be made by way of MP proceedings. However, there is no need to join the Registrar as a Respondent.

11.In conclusion, I therefore order that:

(a) Leave be granted to the applicant to amend the Originating Summons herein to the effect that all references to the Registrar of Probate as Respondent are to be deleted.

(b) Pursuant to section 23A(1) of the Wills Ordinance (Cap. 30), the Will of the Deceased be rectified by deleting the Chinese reference “胡振聲” and substituted with “司徒仲娟” under the interpretation clause therein.

(c) There be no order as to costs.

Mr. K. W. Chiu of Messrs. Chiu, Szeto & Cheng for the Applicant