Sin Sin Yu Tella and Another v. Man Lai Chi

HCCI 1/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CITATION NO. 1 OF 2008

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Before: Hon Lam J in Chambers

Date of Ex-parte Application

by way of Affirmation: 23 November 2009

Date of Decision: 12 March 2010

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D E C I S I O N

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1.This matter was referred by the probate master to this court on 2 March 2010 for directions. The application stems from a citation to propound a will. The Deceased died on 27 August 1999 leaving behind two sons. Shortly before his death, his marriage had been dissolved. He had made a document in Chinese which is apparently a homemade will on 7 August 1999. In that document, he appointed his sister to be the executrix. However, that document does not comply with the formal requirements in Section 5(1) of the Wills Ordinance in that the execution of the same was not attested. On 18 August 1999, he made another document which is apparently a codicil. Again it was not attested. Whilst these documents may still be effective under Section 5(2), no-one has made any specific application for that purpose.  

2.The mother (viz. ex-wife of the Deceased) of the two sons, as their guardians, together with a friend nominated by her to act in their interest, wish to apply for grant of letters of administration in respect of the estate of the Deceased on the basis of intestacy. To facilitate that they applied for a citation to propound a will in respect of the two documents. The citation was settled by the probate master and it was duly served in April 2008. The sister who was named as the executrix in those documents did not enter any appearance. Application is made for grant of letters of administration pursuant to Rule 47 of the Non-Contentious Probate Rules [“NCPR”].

3.On 22 September 2008, the probate master directed that notice of the application be given to all beneficiaries named in the documents, including the contingent ones. For reasons unknown to me, the affirmation of service filed on behalf the Applicants on 23 November 2009 only show partial compliance with such direction. Notices were given to the two sons. However, there is no evidence of notice being given to the contingent beneficiaries. Be that as it may, in the light of the fact that one of the sons has reached 21, the contingent beneficiaries ceased to have any interest as such under those documents (though some of them may have an interest as creditors, for which interests the master directed that no notice of the application need to be given).

4.In those circumstances, the probate master was satisfied with the compliance with the direction of 22 September 2008. She then turned to the application under Rule 47(2). The master was concerned whether the application should be dealt with by motion. Rule 47(2) provides that in case of non-appearance after citation, “the citor may apply on motion for an order for a grant as if the will were invalid”. The master referred the matter to this court for direction.

5.Our Rule 47 NCPR is based on the old English rules, viz. Rule 47 of the English NCPR 1954. The wordings are exactly the same. In other words, the word “may” was also used in the English rules. But there was no suggestion in the English authorities that such application can equally be made by summons or otherwise before a master.

6.The old English practice can be found in the 1970 edition of Williams & Mortimer, Executors Administrators & Probate. The application for grant following a citation to propound a will and non-appearance by the citee, under the old English practice, had to be dealt with by motion, see p.386 and 390.

7.The English practice was changed in 1971 by the Non-Contentious Probate (Amendment) Rules 1971. Substituting the words “by motion” in the English NCPR Rule 47, the amendment provided that the citor may apply “by summons to a registrar of the principal registry”.

8.In our NCPR, there is a difference between rules 46 and 47 regarding disposal of a citation upon non-appearance. For cases falling within rule 46 (which would not result in a grant as if the will were invalid), there are specific provisions for the matter to be dealt with by the Registrar. In contrast, rule 47 provides for the matter to be dealt with on an application by motion. If the intention of the rule-making authority was to allow application under rule 47 to be dealt with by the Registrar, it is difficult to see why there is such a distinction between the two rules.

9.I think the word “may” under Rule 47 can be explained by the fact that instead of proceeding under the NCPR to seek a grant in common form, the applicant has the option to proceed by way of probate action to seek a grant in a solemn form.

10.The nature of an application under Rule 47 is that it may result in the court issuing a grant contrary to the terms in what appears to be a testamentary document.  Even though the court may issue such a grant notwithstanding an application is made in common form business, the court should be cautious before doing so having regard to the principle that the court’s duty is to give effect to the last will of a deceased and the consent of parties interested cannot override that duty.

11.The relevant authorities on the extent to which the court may pass over a will in default of appearance were reviewed by Cairns J in In re Muirhead [1971] P 263. The guiding principles are set out at p.265 E to H. In that case, His Lordship dismissed a motion by an executor seeking a grant without a paper purporting to be a codicil even though those interested under the codicil did not enter appearance upon a citation. There was no evidence impugning the codicil. The court held that the executor has a duty to execute the true last wishes of his testator, including those expressed in the codicil. The proper course for the executor to take, if he has reason to believe that the codicil is not valid, was to apply for grant in solemn form with evidence impugning the codicil.

12.On the other hand, in Morton v Thrope (1863) 3 Sw & Tr 179 the court granted letters of administration to an applicant after the citees did not appear in response to a citation to propound what on the face was a regular will. Another version of the report of Morton v Thrope (1863) 3 Sw & Tr 179 can be found at (1863) 32 LJ PM&A 174. What happened in that case was that at the first hearing, the judge rejected the motion based on the principle laid down by Sir H J Fust in In the goods of Watts (1837) 1 Curt 594 that in the absence of evidence of invalidity of the will, the court would not pass over it despite the consent of all parties interested. Then the applicant filed evidence from one attesting witness to the effect that when he attested to the will, the testator had died. The motion was renewed and heard again. Counsel cited other authorities, including Palmer v Dent (1850) 2 Rob Eccl 284 (also decided by Sir H J Fust). The judge, Sir C Cresswell said he had examined the further authorities cited by counsel and he agreed that they supported the application. He said,

“It appears that Sir H J Fust drew a distinction between cases in which parties interested in supporting or impeaching a will were cited but did not appear, and cases in which they only filed consents. He treated the former as contentious proceedings, and granted probate or administration according to the terms of the citation. But when consents only were filed, he would not pronounce against a testamentary paper without evidence of its invalidity.” 

13.Another report of this case is at [1861-1873] All ER Rep Ext 1536. In that report, it was stated that at the renewed motion, counsel drew attention to the fact that the parties in In the goods of Watts (1837) 1 Curt 594 were not cited to propound the will in question whereas in Palmer and Brown v Dent (1850) 2 Rob Eccl 284, a citation had been issued and there was no appearance. Placing reliance on the latter, counsel submitted where the parties interested had been cited the court needed not have any information as to the validity of invalidity of the paper.

14.In In re Muirhead [1971] P 263, Cairns J felt constrained by the authority of Morton v Thrope (1863) 3 Sw & Tr 179 and thus decided the case by reference to the distinction between an application by executor (who has a duty to execute the true last wishes of a testator) and an application by a potential beneficiary under intestacy (who has no such duty).

15.But I doubt whether that distinction provide a complete answer to the question when can the court pass over a testamentary document in the absence of evidence impugning the same.  Even though a potential beneficiary under intestacy does not have any duty regarding the last wish of a deceased, the court in the exercise of its probate jurisdiction has its own duty. Cairns J described the duty as follows in In re Muirhead [1971] P 263 at p.265E,

“…it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary document.”

16.When it is brought to the attention of the court that there is a document which on its face is testamentary in nature, on what basis can the court ignore it simply because those who had an interest to propound it choose not to do so despite a citation? In cases where the validity of the document is doubtful the court may act upon the basis that the onus is on those who seeks to propound a testamentary paper to prove its validity and the failure by those interested in so doing to take up the burden can be regarded as a good reason to treat the paper as invalid. In most of the authorities cited for this practice, there were doubts regarding the validity of the document in question. In Palmer and Brown v Dent (1850) 2 Rob Eccl 284(the only reported case cited by counsel to persuade the judge in Morton v Thrope), the questioned will was executed whilst the testator was labouring under unsound mind and Sir H J Fust was able to say in the judgment that the citees declined to propound the document as they were well aware that the testator was not in a sound state of mind when it was executed. Likewise, there was evidence that cast doubt on the due attestation of the document in Morton v Thrope though the judge did not feel able to reach any conclusion on the facts without further investigation.   

17.Thus, it was said that an applicant for the issue of citation to propound a will has to hold a genuine belief that the will in question is invalid, see Williams, Mortimer & Sunnucks, Executors Administrators & Probate, 2008 Edn., para.32-04.

18.As presently advised, I shall be content to adopt the approach of Murphy J in Re Grey Smith, deceased [1978] VR 596 at 621,

“… the onus of proving that [a later testamentary paper] was the true will of a free and capable testatrix rests on the person wishing to propound it … it ought to be sufficient for the applicants for probate of an earlier will alone to establish circumstances giving rise to a well founded suspicion as to whether this is so, and then on proof that notices have been given to all interested parties and if no one comes forward to propound the later document, the Court should … be in a position to ignore it.”

19.On the facts of the present case, though the home-made will does not satisfy the requirement under Section 5(1) of the Wills Ordinance, I do not feel able to ignore it without hearing submissions from the Applicants as regards the applicability of Section 5(2). 

20.Looking the matter from another angle, like other applicants for grants of letters of administration on the basis of intestacy, the Applicants should be required to sworn to the intestacy of the Deceased, see In the goods of Bootle (1901) 84 LT 570.  Can they be permitted to do so in the absence of any doubt about a testamentary paper?

21.In the Victorian case of Re Breen [1961] VR 522, the court issued a grant on the basis of intestacy upon the executor of a will indicating he had no objection and in the light of conflicting evidence on the due attestation of the will. The court took into account that the beneficiary would be the same under intestacy as well as under the will in question. The court also indicated a different practice would apply when this was not the case.

22.In the present case, the homemade will is on its face testamentary in nature and, apart from the lack of attestation, there is nothing to suggest that its validity is doubtful. As I said, the Applicants are at liberty to make submission to this court why Section 5(2) is not applicable. But is it a case similar to Re Breen in any event?

23.Although the homemade will primarily contains provisions for the two sons, there are the following differences from the intestacy rules,

(a) the will contains express provisions regarding repayment of specified debts to specified persons;

(b)    the will provides for devolution of the interest of a son in the residuary estate in case of his death before 21 which is not the same as the intestacy rule;

(c) before a son reaches 21, his share in the residuary estate under the will can only be used for his education.  

24.Though one son has reached 21, the other has not. 

25.Thus we are not dealing with a Re Breen situation.

26.At this stage, I leave open the question whether the court can ignore a document in cases where there is no suggestion that a testamentary paper is doubtful simply upon the non-appearance of citees pursuant to a citation. If the Applicants are so advised, they can advance submissions to that effect at the hearing of the motion to be taken out herein.

27.As mentioned, the practice in England has been changed since 1971. As for Hong Kong, with our Rule 47 in its present form, I am of the view that the application has to be proceeded by motion. 

28.In the circumstances, I direct that,

(a) If the Applicants wish to pursue an application for grant based on Rule 47(2), they should issue a Notice of Motion returnable before this court;

(b)    In addition to the evidence already filed, the Applicants shall (if so advised) file supplemental evidence relevant to the points raised in this decision within 14 days of the filing of the motion, in particular the Applicants shall state the basis on which they believe that the Deceased died intestate;

(c) The Applicants shall serve the notice of motion and the evidence on the executrix named in the homemade will.

29.Another alternative is for the Applicants to apply under Rule 46. Under that rule, the Applicants may obtain a grant with the homemade will annexed if the executrix named therein does not take up the grant.

Messrs Chaine, Chow & Barbara Hung, for the Citors