Au-yeung Yee Man v. Wan Po Jun Mary Pauline

HCAP19/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2008

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Before : Hon Yam J in Chambers

Date of Hearing : 19 August 2009

Date of Judgment : 19 August 2009

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J U D G M E N T

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1.This is the appeal of the defendant Madam Wan against the decision of Master Levy striking out the defendant’s Defence and Counterclaim on 17 June 2009.

2.This is a probate action and the plaintiff Madam Au-Yeung Yee Man is a daughter of the deceased who had made a Will appointing the plaintiff as the executrix of the Will.

3.The defendant filed and served her Defence and Counterclaim on the following grounds, namely :

(1) the defendant alleged that she and the deceased had been living as husband and wife; and

(2) the deceased had promised her to marry her during his lifetime.

4.In this respect, it has already been provided in section 23 of Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 (“the Ordinance”), that :

“Engagements to marry not enforceable at law

23(1)  an agreement between two persons to marry one another shall not have effect as a contract giving rise to legal rights and no action shall lie for breach of such an agreement.”

This section of the Ordinance had already come into effect on 7 October 1971.

5.Master Levy did not refer to this section of the Ordinance and I discovered that Mr Paul Leung of counsel appearing for the plaintiff did not refer the learned Master to this section.  In any event, breach of promise of marriage is no longer actionable since 1971 and therefore Madam Wan cannot raise this defence to the application of the plaintiff for probate to be granted to her on the strength of the Will.

6.In respect of the Will, Madam Wan has pointed out a few suspicious points and basically she is saying that when the deceased executed this Will in front of the solicitors, the deceased was not of sound mind.  She also cast doubts on the medical certificate of the attending physician and she alleged that he was bias since he was a colleague of the plaintiff.  Be that as it may, the defendant must state her locus standi as to why she has a right to dispute the Will.

7.Master Levy decided that even if the Will is set aside, the defendant has no standing to challenge the grant of probate or the Letter of Administration since Madam Wan is not a beneficiary under the Will or the intestacy of the deceased.  I entirely agree with the decision of Master Levy.

8.Madam Wan further alleged that :

(1) she has an equity in the property in which she is now living; and

(2) she has a right to apply under Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481, section 3 as a dependant of the deceased.

Be that as it may, they are not defences to a probate action.

9.I was told this morning by Madam Wan that her application for legal aid to enable her to apply under Cap. 481 has been granted by the Director of Legal Aid and therefore apparently an action will be taken under that Ordinance in due course.  She was advised to state her case of equity in the property and as a creditor of the estate and apply for legal aid to enforce her rights.  They are not defences to this probate action and I entirely agree with Master Levy that the Defence and Counterclaim should be struck off.

10.Accordingly, this appeal is dismissed.

[Discussion on costs]

11.Costs of the appeal be to the plaintiff/respondent to be taxed, if not agreed, on gross sum assessment basis before a master.

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

The Defendant in person, being present