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

CACV 208/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2009

(ON APPEAL FROM HCAP NO. 19 OF 2008) 

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Before: Hon Tang Ag CJHC and Yuen JA in Court

Date of Hearing: 24 September 2010

Date of Judgment: 6 October 2010

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JUDGMENT

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Hon Tang Ag CJHC (giving the judgment of the Court):

1.The deceased died on 11 April 2008.  On 18 October 2007, in the presence of Mr Chong Pui Choi, a consultant solicitor in the firm of Messrs. Shaw & Ng, and Ms Chiu Wai Ying, a legal executive of the firm, the deceased made a will in English, appointing his daughter Au‑Yeung Yee Man, as the sole executrix and trustee of his will, and leaving his estate to Au‑Yeung Yee Man, his daughter, and Au-Yeung Thomas Pang, his son.

2.On 7 May 2008, the defendant entered a Caveat under r. 44 of the Non-Contentious Probate Rules, Cap. 10A (“NCPR”).  When she 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.  The Statement of Claim herein was issued on 20 November 2008.  The defendant’s Defence and Counterclaim was filed on 28 November 2008.

3.By summons dated 12 December 2008, the plaintiff applied to strike out the defendant’s Defence and Counterclaim and for judgment on the grounds that:

(a)      it discloses no reasonable defence;

(b)      they are frivolous and vexatious; and/or

(c)      they are an abuse of the process of the court; and

(d)      for judgment to be entered for the plaintiff against the defendant.

4.On 3 February 2009, the defendant issued a summons for judgment on her counterclaim.  She counterclaimed for:

“ (a) A declaration that the relevant Will is null and void as being executed when the Deceased was not sober.

(b) Account for various bank-accounts jointly or solely held by the Deceased locally or abroad.

(c)    Half-sharing in the estate of the Deceased including the Defendant’s entitlement in the use and occupation in the said property known as Flat A, 42nd Floor, Tower I, Harbourfront Landmark, 11 Wai Hoi Street, Hunghom, Kowloon”

5.It is the defendant’s case that she had cohabited with the deceased for many years, and that she had been accepted by the deceased’s family and relatives as part of his family, but she is not a person who falls within section 4 of the Intestates' Estates Ordinance, Cap. 73.

6.The summonses were heard before Master Levy on 15 June 2009 and by her judgment of 17 June 2009, she ordered that the Defence and Counterclaim be struck out; that the Caveat entered by the defendant should cease to have effect, and the plaintiff was entitled to apply for a grant of probate of the deceased’s estate. Thereafter, presumably, pursuant to the NCPR, a grant of probate of the will was granted to the plaintiff on 10 November 2009. 

7.The defendant was not satisfied with the judgment of Master Levy, and her appeal was heard by Yam J on 19 August 2009.  On the same day, Yam J dismissed the appeal.  In his reasons given on the same day, he said he agreed with Master Levy that:

“7. … 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.”

8.The defendant also contended that the will contains too many doubts and is not valid because:

(1)    The deceased’s signature on the will is different to the deceased’s signature on a Deed Poll;

(2)    The deceased did not have a sound mind at the time of the execution as she has been left out completely from the will.

9.The Deed Poll relied on was made by the deceased on 12 June 1985. The will was made on 18 October 2007, some 22 years later.  Therefore the difference in the appearance of the two signatures is not a matter that would raise any doubt.  Moreover, it is quite clear, from the evidence produced on behalf of the plaintiff, that not only was the deceased known to Mr Chong Pui Choi, but for the purpose of making the will, the deceased’s Hong Kong Identity Card had been produced by the deceased to Mr Chong for verification of his identity.  There is a letter from Messrs Shaw & Ng to the effect that the deceased appeared thoroughly to understand the will, and to approve the contents thereof.  Indeed, it was so stated in the will.

10.There is also a statement from Dr W.B. Chan, who had been seeing the deceased for diabetes since December 2004, and who had seen him, a short time before the will was made, during the deceased’s stay at the Baptist Hospital between 12 October 2007 and 16 October 2007, in which Dr Chan said:

“During his stay in Baptist Hospital, he was fully oriented, mentally sound and could conduct sensible discussion about the management of his diseases.”

11.Against such background, we are not surprised that, presumably, pursuant to the NCPR, a grant of probate was granted to the plaintiff on 10 November 2009.

12.Yam J also referred to the defendant’s case that:

(1)       she has an equity in the property in which she was then 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.

13.But even so, as the learned judge has correctly pointed out, they are not defences to the probate action.  Indeed, the defendant has been granted legal aid to pursue a claim under the Inheritance (Provision for Family and Dependants) Ordinance.  That is an action which the defendant should pursue. 

14.Indeed the defendant told us that she has also a monetary claim against the deceased, as well as a claim against the property.  She can proceed with these claims in separate proceedings. 

15.But we have no doubt that the appeal must be dismissed, with costs, to be taxed, unless agreed.

The Defendant, in person, present 

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