Au Yeung Yee Man v. Wan Po Jun Mary Pauline

HCAP 19/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2008

----------------------

----------------------

BETWEEN

----------------------

Coram : Before Master Levy in Chambers

Date of Hearing : 15 June 2009

Date of Judgment : 17 June 2009

-------------------------

J U D G M E N T

------------------------

PROTAGONIST

1.The Deceased died domiciled in Hong Kong on 11 April 2008.  The Plaintiff (“the Daughter”) and Thomas are respectively his daughter and son.  Pauline was the Deceased’s secretary, and later became his cohabite.  The Deceased and Pauline were never married.

THE WILL

2.The Deceased left a will dated 18 October 2007 (“the Will”) appointing the Daughter as the sole executrix and trustee, naming the Daughter and Thomas as beneficiaries of his estate.

APPLICATION FOR PROBATE

3.The Daughter applied for a grant of probate of the Will.  Pauline entered a Caveat under rule 44 of the Non-Contentious Probate Rules (“NCPR”).  When Pauline entered an appearance to the Daughter’s warning contending for, among other things, her entitlement to a share of the Deceased’s estate, the Daughter commenced the present probate claim.

DEFENCE & COUNTERCLAIM

4.In the Defence, Pauline disputes the Daughter’s entitlement to probate of the Will, and contends in paragraph (5) of the Defence that “she is entitled to administer and share the Deceased’s estate in term of compensation for breach of promise of marriage on part of the Deceased”.

5.Pauline then detailed her intimate relationship with the Deceased, her participation in the Deceased’s social and business life.  She further averred that she had been accepted by the Deceased’s family and relatives as part of the member of his family.  Further, Pauline had also allegedly credited money into the Deceased’s account, and helped Deceased pay for some domestic and household expenditures during the co-habitation.

6.In the Counterclaim, Pauline asks for an order declaring the Will to be null and void on the ground that it was executed “when the Deceased was not sober”, for an account of the bank accounts jointly or solely held by the Deceased locally or abroad, and for “half-sharing in the estate of the Deceased” (which includes the right to use and occupy a property in Hunghom in which the Deceased and Pauline had co-habited before the Deceased’s death).

THE SUMMONSES

7.The Daughter issued a summons under O.18 r.19 of the Rules of the High Court on 12 December 2008 for striking out the Defence and Counterclaim on the grounds that (a) the Defence discloses no reasonable defence; that (b) the Defence and Counterclaim are frivolous and vexatious; and that (c) the Defence and Counterclaim are an abuse of the process of the court.

8.Pauline also on 3 February 2008 issued a summons for judgment on the Counterclaim for the Daughter’s failure to file a Defence to the Counterclaim within time.

9.By an order dated 11 February 2009 of Master Ho, the Daughter was given an extension of time to file and serve a Defence to the Counterclaim until her summons is determined.

10.By the extension of time granted by Master Ho, Pauline’s summons has overtaken by the said order.  As a result, I make no order on Pauline’s summons.

11.Therefore, I only need to deal with the striking out summons.

SUBMISSIONS

Counsel for the Daughter

12.Counsel for the Daughter, Mr. Leung submitted that it was a clear case for striking out as Pauline, not being a person that falls within s.4 of the Intestates’ Estates Ordinance (Cap.73) to succeed to the Deceased’s estate on the intestacy, she would have no entitlement whatsoever even if Pauline could succeed in challenging the Will leading to its rejection by the court. To shortly put, Pauline is not entitled to apply for letters of administration or as a beneficiary of the Deceased’s estate whether under the Will or upon the estate becoming intestate.

Pauline

13.Pauline appeared in person.  Before the hearing, she had filed a supplemental affirmation dated 7 April 2009 without leave.  With the consent of Mr. Leung, I granted leave to Pauline to file the affirmation, and that the filing do stand.

14.At the hearing, Pauline further asked me to grant her leave to produce a stack of documents containing photos taken of her together with the Deceased.  I had had sight of those documents, and declined to grant her leave to produce them because I was of the view that those documents would only further lend support to Pauline’s relationship with the Deceased – which relationship, in my view, is not a relevant issue to the dispute.

15.Though I have taken the liberty of allowing Pauline more than 30 minutes to make submissions after having already given her 30 minutes to   calm herself down, she just kept harping on her intimate relationship with the Deceased, and how unfair the Daughter had alleged been to her.

16.At the end, I have to require Pauline to state her submissions by points, which I summarise below:

(i)  Regarding the Will, Pauline contends that it contains too many doubts, and is not valid for reasons that:

(a)  The Deceased’s signature on the Will is different to the Deceased’s signature on the Deed Poll;

(b)  The Deceased did not have a sound mind at the time of the execution as Pauline had been left out completely from the Will;

(ii)  Regarding the Daughter’s claim,

(a)  Pauline disputes the Daughter’s entitlement to administer the estate;

(b)  Pauline claims that she should be the administrator of the Deceased’s estate as she had been the Deceased’s consort and companion.

(iii)  Regarding the Deceased’s estate, Pauline contends that:

(a)  She has the right to remain in occupation of the property she last resided with the Deceased before the latter’s death;

(b)  She is entitled to be repaid the money she had previously given to the Deceased;

(c)  She should be provided for her future life as she has no money and has to live on disability allowance.

DISCUSSION

17.In this case, Pauline has no entitlement under the Will.  Thus, her only recourse would be the law of intestacy. Pursuant to s.4 of the Intestates’ Estates Ordinance, only these persons (according to the order of priority) will be entitled to succeed on an intestate’s estate: surviving spouse, issue of the intestate, his parents, brothers and sisters of the whole blood, brothers and sisters of the half blood, grandparents, uncles and aunts.

18.Pauline, being a cohabite, does not fall within any of the above categories of the persons entitled to succeed under s. 4 of the Ordinance.

19.Thus, it is patently clear that even if Pauline could succeed in challenging the validity of the Will leading to its rejection by the Court, Pauline would still have no right to succeed to the Deceased’s estate should it become intestate.

20.Regarding her loan allegedly made to the Deceased, Pauline could be regarded as a creditor of the Deceased.  Her capacity as a creditor however will only give her a right to apply for a grant under rule 21(1)(4) of the NCPR when all the persons who have prior rights are cleared off.  In this case, as the Deceased died leaving issues (who will include the Daughter and Thomas), these issues’ right to apply for letters of administrator will be ranked much higher than Pauline’s.

21.Hence, Pauline will have no entitlement to apply for grant should the Deceased’s estate become intestate.  Any debt owed by the Deceased will only be actionable against the Daughter after the grant of probate is issued to her. 

22.Pauline’s demand for maintenance from the estate similarly does not entitle her to apply for a grant although section 3(ix) of the Inheritance (Provision for Family and Dependants) Ordinance (Cap.481), entitles a person “who immediately before the death of the deceased was being maintained either wholly or substantially, by the deceased” to apply for financial provision from a deceased’s estate.

23.In conclusion, therefore, I find it is plain and obvious that the Defence and Counterclaim are clearly unsustainable, and should be struck out on the grounds stated in the striking out summons. I so order.

ORDER

The Plaintiff’s summons for striking out

(i)  The Defence and Counterclaim are struck out.

(ii)  The Caveat entered by the Defendant shall cease to have effect, and the Plaintiff is entitled to apply for a grant of probate of the Deceased’s estate.

(iii)  A costs order nisi that the Plaintiff shall have the costs of the summons and the action (including costs reserved) with certificate for counsel (for the summons), which costs are summarily assessed at a sum of $90,000 in lieu of taxed costs.

(iv)  The said costs order nisi shall become absolute unless an application is made within 14 days from the date of handing down of this judgment.

Defendant's summons for Judgment

(i)  No order made.

Mr. Paul Leung instructed by Messrs. Liu, Chan & Lam for Plaintiff.

Defendant, appearing in person.