Read the full judgment text of CACV 149/2011, CACV 157/2011, CACV 182/2011 on BabelCite. This Court of Appeal judgment was delivered on 28 February 2012 before Cheung JA, Yuen JA.
Probate – contentious probate action – summary judgment under Order 14 – whether Order 14 applicable where defendant files counterclaim propounding later will – execution of will attested by non-party solicitors – testamentary capacity of 93-year-old testator residing in old age home with documented dementia – rejoinder filed without leave under Order 18 rule 4 – whether leave to file rejoinder was properly granted – Deceased made a 1976 will in favour of two sons, and a 2002 will in favour of six grandchildren with plaintiffs as executors – Deceased died on 7 July 2009 aged 93, after residing in an old age home from March 2007 – Defendant, the deceased's son, propounded a 2008 will, allegedly executed on 5 September 2008 at the old age home in the presence of two solicitors from TAYY (Mr. Yeung and Mr. Lau), giving property to the defendant, his brother, and two grandsons – Whether the court should grant summary judgment in a contentious probate action with a counterclaim – Court followed Re Lau Siu Wah [2005] 1 H.K.C. 364 in holding that Order 14 is not in principle excluded from probate actions, but emphasised that summary judgment is rarely appropriate where attesting witnesses are non-parties and a counterclaim raises credibility issues, citing Tristram and Coote's Probate Practice – Whether the defendant raised an arguable defence on execution – Yes, the TAYY letter of 8 October 2009 and the willingness of Mr. Yeung and Mr. Lau to testify at trial raised a triable issue on execution – Whether the defendant raised a triable issue on testamentary capacity – Yes, the determination of testamentary capacity is unsuitable for summary judgment – Court applied the classic test in Banks v. Goodfellow (1870) LR 5 QB 549, requiring understanding of the nature of the act, extent of property, claims of those entitled, and freedom from insane delusion – Medical reports from Dr. Ko, Dr. Au, Dr. Chan, Queen Mary Hospital and Tung Wah Hospital indicated dementia, but were brief and lacked detail on severity – Court held that written evidence of dementia is insufficient; the severity of the dementia and its impact at the time of execution requires oral evidence at trial – The defendant was not required to produce a medical report on capacity to raise a triable issue; the attesting solicitors' confirmation that the deceased verbally confirmed understanding of the will was sufficient – Conditional leave to defend was not appropriate where a genuine triable issue existed; the proper order was unconditional leave to defend – Plaintiffs' appeal for summary judgment dismissed – Whether leave to file rejoinder was properly granted under Order 18 rule 4 and rule 8(1) – Court held that the judge below had not applied the correct test, focusing only on time and lack of prejudice rather than whether the rejoinder raised matters requiring specific pleading – Following The Bank of East Asia Ltd v. Labour Buildings Ltd, leave to file a rejoinder will not be granted unless it is really required to allow matters that must be specifically pleaded – Leave to file reply to defence to counterclaim set aside and matter remitted to the judge below for fresh determination – Defendant successful in appeal on summary judgment entitled to costs from the estate – Plaintiffs failed in appeal on summary judgment, defendant entitled to costs of that appeal from the estate – No order as to costs of plaintiffs' appeal on striking out and rejoinder – Costs below to be costs in the cause, with the question of whether costs come from the estate to be decided by the judge after trial.
Legal issues: Whether summary judgment is appropriate in a contentious probate action with a counterclaim · Whether the defendant raised an arguable defence on execution of the 2008 will · Whether the defendant raised a triable issue on testamentary capacity · Whether leave to file a rejoinder was properly granted
Outcome: Defendant's appeal on summary judgment allowed and unconditional leave to defend granted; plaintiffs' appeal on summary judgment dismissed; plaintiffs' appeal on striking out and leave to file rejoinder partially allowed with leave to file rejoinder set aside and matter remitted to the judge below for fresh determination.
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