Chung Chui Everitt and Others v. Pong Lau Lau

HCAP 1/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 1 OF 2003

____________

BETWEEN

(by Original Action)

____________________

(by Counterclaim)

____________________

Before:  Hon A Cheung J in Court

Dates of Hearing: 7-10 May 2007

Date of Judgment: 10 May 2007

_______________

J U D G M E N T

_______________

1.This is a probate action. 

2.The defendant, by her counterclaim, seeks an order from the Court to pronounce in solemn form of law for the will of the deceased, dated 11 August 2000. 

3.The position of the plaintiffs is to put the defendant to strict proof of the will.  More specifically, the issues at trial are the due execution of the will, the testamentary capacity of the deceased and his knowledge and approval of the contents of the will.

4.The Court has heard evidence from the solicitor who prepared the will on behalf of the deceased and attested its execution.  The Court has also heard evidence from the other attesting witness on the execution of the will. 

5.The Court has also heard the evidence of another witness from the same firm of solicitors, which prepared the will, regarding the firm’s dealings with the testator and the events leading eventually to the preparation and the making of the will.

6.The Court has also heard the evidence of the defendant regarding the events in the last two years of the life of the deceased, including those leading to the making of the will, and the actual making of the will itself.  Her evidence has not been contested by cross-examination by the plaintiffs. 

7.Having considered all available evidence, including the documentary evidence, this Court is satisfied that the defendant has discharged all legal burden on her as executrix named in the will in the propounding of the will. 

8.In those circumstances and given the position indicated to this Court by Mr Chan SC, Mr Miu with him, appearing for the plaintiffs, that they are also satisfied that the defendant has discharged the legal burden on her part, the Court makes an order pronouncing in solemn form of law for the will of the deceased, dated 11 August 2000.  Probate of the will shall be issued in favour of the defendant as the executrix named in the will.

[Submissions on costs]

9.By consent, costs of this action, including the counterclaim, incurred up to and including 12 April 2007, be paid by the plaintiffs to the defendant to be taxed if not agreed.  There be no order as to those costs incurred after 12 April 2007.  Notwithstanding the above, there be no order as to the costs of counsel for the trial.

Mr Edward Chan SC and Mr Nelson L Miu, instructed by Messrs Andrew Lam & Co, for the 1^st to 6^th plaintiffs (by original action) & for the 1^st to 6^th defendants (by counterclaim)

Mr Kumar Ramanathan, instructed by Messrs Cheung, Chan & Chung, for the defendant (by original action) & for the plaintiff (by counterclaim)