Tang Tim Chue v. Tang Ka Hung Robert and Another

HCMP 2506/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2506 OF 2009

(Transferred from DCMP No 798 of 2008)

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J U D G M E N T

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1.The applicant (“TTC”) claims against the father’s estate under the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (“the Ordinance”) for monthly maintenance. (All references to “sections” below shall to be those in the Ordinance.)

The applicant’s case

2.Tang Sum On (“the father”) and Madam Liu Chuen Mui (“the mother”) were married through Chinese customary marriage in 1951.  Two children (TTC and his sister) were born out of that marriage.  The parents lived apart soon after marriage and were divorced in 2002. 

3.The father had had a relationship with Madam So Wai Fong even before marriage.  He took her as his concubine since 1952.  They separated in 1955 with no child born out of that union.  The father then cohabited with Madam Yip Yuen Yee (“Madam Yip”) since 1955 until his death.  There were 2 sons and 2 daughters born out of that relationship.

4.In 1963, at the birthday party of the father’s natural mother, the father showed up with the 2 sons of Madam Yip.  After the birthday party, the father sought approval from the mother and the clan to permit the 2 sons to light the lantern at the ancestral hall to recognize them as descendants of the Tang clan.  In front of the grandmother, the mother and TTC, the father promised to divide all his personal estates into 4 equal shares after his death, 2 of which would be given to TTC. Because of that promise, the mother gave her approval.  This event will be referred to below as the “light the lantern agreement”.

5.In 1972, TTC went to Canada for education.  He returned to Hong Kong in around 1979 and got engaged in a series of litigation with his father.  Between 1988 and 1994, he had run a business of frozen seafood in Hong Kong and a restaurant in Vancouver.  The business failed and he incurred debts.  He returned to Hong Kong in 1995 to seek financial assistance from the father.

6.The father asked TTC to manage his lands, recover them from trespassers, turn them into productive assets and use the rent on his family and the mother (“the father’s authorization”).  He introduced TTC to new and existing tenants.  TTC then dealt with 44 pieces of the father’s land between 1996 and 2006, and had allegedly received a total of over $7,000,000 in rent.  TTC claimed that he has been living at the ancestral home situate at Lot 61 in DD 125, being 73, Sai Wai, Ha Tsuen (“the ancestral home”).

7.The father passed away on 7 November 2005, domiciled in Hong Kong.  Grant of probate was issued on 2 November 2007.  His will dated 27 September 1991 left everything to Madam Yip’s children, including the executors.  His codicil dated 6 December 2004 excluded the mother, TTC and his sister from his funeral service and obituary.

8.Because of his age and lack of working experience, TTC now seeks monthly maintenance of $112,491 from the father’s estate for the support of his wife and 2 sons and maintenance of the ancestral home.

The executors’ case

9.The executors claimed that the father was used to deal with his affairs himself and denied the existence of the father’s authorization.  The father was resolute in not leaving any asset to TTC.

The applicable principles

10.Firstly, to qualify for an application under the Ordinance, an adult child has to prove that “immediately before the death of the deceased, he was being maintained, either wholly or substantially by the deceased”: section 3(1)(vi) of the Ordinance.  For the purposes of an application under section 3(1)(vi), “a person shall be treated as being maintained by the deceased, either wholly or substantially, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person”: section 3(3).

11.Secondly, he has to prove that the disposition of the deceased’s estate effected by his will was “not such as to make reasonable financial provision” for him: section 3(1).  “Reasonable financial provision”, in his case, means “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”: section 3(2)(b). 

12.Thirdly, in determining whether and in what manner it shall exercise its discretion to make an order in favour of an applicant, the court shall have regard to 7 factors under section 5(1) including:

“(a) the financial resources and financial needs which TTC has or is likely to have in the foreseeable future;

…

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

…

(g)  any other matter, including the conduct of TTC or any other person, which in the circumstances of the case the court may consider relevant.”

13.The court shall have regard to facts known to it at the date of the hearing: section 5(7).

14.If the applicant meets the above requirements, the court may make an order for periodical payments, a lump sum payment, a transfer of property order, a settlement of property order and/or an acquisition and transfer of property order: section 4. 

15.In considering an application of this sort, testamentary freedom should be respected. The question which the court should ask is (i) whether reasonable financial provision been made for TTC? (ii) if not, what financial provision ought he to receive?  Re Coventry, [1980] 1 Ch 461 at 469G. Question (i) is an objective test involving “value judgment”, a quality decision.  Question (ii) is one of discretion.

“It seems to me, however, that in regarding the circumstances and in applying the guidelines set out in [section 5 of the Ordinance], it always has to be borne in mind that the Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable maintenance. It is not the purpose of the [Ordinance] to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases, or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.” Re Coventry (deceased), Coventry vCoventry [1980] 1 Ch 461, at 474G-475B, per Oliver J; Robinson v Bird [2003] All ER (D) 190 (Jan); Millward v Shenton [1972] 2 All ER 1025 at1029a-b, Lord Denning MR.

16.The court should not grant the order sought simply because an applicant was in blood relationship with the deceased, was in necessitous circumstances and the deceased’s estate could afford to meet those needs:  Re Coventry (deceased), Coventry v Coventry at 487H-488F, per Oliver J. 

17.It is not necessary for an applicant to prove that he is in a state of destitution or financial difficulty.  The word “maintenance” refers to no more and no less than the applicant’s way of life and well-being, his health, financial security and allied matters such as the well-being, health, financial security of his immediate family for whom he is responsible.  In re Christie, deceased [1979] 1 Ch 168 at 174D-F, Mr Vivian Price QC.

18.However, in the case of an adult child applicant without incapacity, the court will ask why he needs to be provided for by another.

“A son is in the same position as all other able-bodied applicants. A person who is physically capable of earning his own living faces a difficult task in getting provision made for him, because the court is inclined to ask: ‘Why should anybody else make provision for you if you are capable of maintaining yourself? The applicant is 38 years old. There is no evidence that he is in any way unfit. Although at present out of work he appears to have as much chance as anybody else of obtaining employment and maintaining himself. In addition, the court is reluctant to make further provision for someone for whom large sums of money have been provided and which have been dissipated by him.” In re Dennis (deceased) [1981] 2 All ER 140, 145b, Browne-Wilkinson J; In re Coventry [1980] 1 Ch 461,495.

19.With an applicant in such a position, other factors in section 5(1) in favour of his claim for financial provision may not be of much weight: Espinosa v Bourke [1999] 1 FLR 747, 755F, Butler-Sloss LJ. 

The Issues

20.The issues are whether or not TTC has met the above 3 requirements under the Ordinance.  Facts were heavily disputed.  First-hand evidence as to the father’s authorization came only from TTC’s side. Documentary proof of the land involved and the rent collected was incomplete, partly because of loss through time.  Credibility of witnesses was critically important.

Credibility of witnesses

21.Apart from himself, TTC has 4 witnesses – his mother, Lam Kuen, Tang Chik Leung and Lee Kwok Pang.  The executors only called Robert Tang (“Robert”).  Affirmations of Chan Fong and Tang Kwan Sing (who had not attended the trial) were disregarded as directed.

22.TTC’s evidence is full of inconsistencies – both on its own and with the evidence of other witnesses.  He used long answers that merely repeated what was in his affirmations to avoid answering simple questions under cross-examination directly.  By way of example, he would not state directly whether he had told his mother about the father’s authorization.  Further, he sought to re-open findings of fact in previous actions.  There were illogical aspects on how he handled leases on behalf of his father.  He does not appear to be a wholly credible witness.  Save for those parts that I expressly accept, I reject his evidence.

23.The mother has the tendency to be imprecise at times, probably to assist his son’s case.  However, she is generally credible.

24.I find TTC’s other witnesses to be unreliable.  The detailed analyses of their evidence can be found in paragraphs 86-96 below.

25.Robert used to maintain a close relationship with the father and had been seeing the father until his death.  The two of them had detailed conversations and the father had repeatedly voiced his personal opinion towards TTC and his mother, especially since the institution of the divorce proceedings by the mother.  Robert had been assisting his father in opposing the mother’s claim for ancillary relief.  What he described as his father’s attitude towards TTC was credible having regard to objective, circumstantial evidence.  Robert was also a forthcoming witness who was not shaken under cross-examination.  Unless otherwise specified, I accept his evidence as truthful.

Previous findings of facts in other actions

26.The parties have agreed to be bound by the finding of facts in 6 pieces of litigation (collectively “the Actions”), notwithstanding that TTC was not a party to 2 of them.

1^st Action: HCA 2125 of 1978 (the TKWT Action)

27.The great grandfather of TTC was Tang Chik Fook, alias Tang Lim Ming. He had 3 sons including Tang Kap Wing and Tang Kang Cheung (the grandfather). Tang Kap Wing predeceased the great grandfather without male issue.  The father was thus posthumously adopted by Tang Kap Wing and was made beneficiary to the Tang Kap Wing Tso.  Madam Wong, the wife of Tang Kap Wing, was thus the “adoptive grandmother” (“the grandmother”) of TTC.  According to TTC’s 2^nd affirmation, the father subsequently chose to return to Tang Kang Cheung’s family and abandoned the grandmother because his natural father was many times richer than the Tang Kap Wing family. 

28.After the death of the grandfather, the grandmother, the mother and TTC became manager/additional manager of the Tang Kap Wing Tso.  Although the father agreed that the grandmother, the mother and the children should be maintained by the income of that Tso, he was angry that he himself was excluded and eventually disinherited. He instituted the TKWT Action against, amongst others, the grandmother, the mother and TTC in respect of entitlement to the assets of that Tso.

29.The TKWT Action was settled by consent in 1983 (“the consent order”).  40% of the land (valued at $3.1 million) was transferred to the father and the remaining 60% (valued at $4.68 million) was retained by the Tang Kap Wing Tso.  TTC also became the sole successor of the Tso and was entitled to income from Six Entities holding lands or businesses.  There was no finding of facts in the TKWT Action.

2^nd Action: HCA 12547 of 1999 (the TLT Action)

30.TTC sued the father for $234,737.90 and the return of certain rental income from the Tang Leuk Tso.  The action was settled upon the father paying TTC $800,000 in return for assignment of TTC’s interest in the Tang Leuk Tso. There was no finding of facts in the TLT Action. 

3^rd Action: FCMP 2 of 2000 (the Validation Action)

31.The mother obtained an order against the father for validation of her marriage.  There was no finding of facts relevant to the present case.  TTC was not a party to this action.

4^th Action: FCMC 2250 of 2000 (the AR Proceedings)

32.The AR Proceedings were started by the mother on the ground of the father’s desertion since 1954.  In 2002, decree absolute was granted and the mother was awarded a lump sum of $12,000,000.  TTC was not a party to this action.

33.The mother’s case in the AR Proceedings was that the father had never fulfilled his duties as a husband or a father.  She had never been directly or indirectly maintained by the father despite his inheritance from his natural father’s estate.  She and the grandmother were maintained by the Tang Kap Wing Tso and it was admitted by the father.  It was the mother’s case that since the consent order, TTC had sold most of the land held by the Tang Kap Wing Tso whilst the others had been resumed by the government.  It was TTC who maintained her and the grandmother with the sale proceeds.  The mother had wanted to seek maintenance from the father by court action but in deference to the grandmother’s wishes (who was not in favour of litigation between the couple) decided not to do so till after the grandmother died.  She, however, never gave up her rights for maintenance.  She had in fact tried to ask the father every time she ran into him in the village, but he was always trying to avoid her and she had no idea where he actually resided.

34.The following findings of fact in the judgment of His Honour Judge Bruno Chan dated 2 September 2002 (“the AR judgment”) were relevant to the present case:

(i)   That the father had failed in his duties:

“There is no question that the Wife single-handedly brought up the children under very difficult circumstances, financially and otherwise, as the Husband was never involved, as admitted by him, and even when he was, he never helped. There is the evidence that in 1956 he refused to let the Wife and their son live at the vacant cockloft of his pawnshop premises which would have saved them the long and hazardous journey each day to and back from the son’s school. He also refused to pay for his son’s studies in Canada and objected to the sale of some of the Tso’s assets by [the grandmother] for such purpose. Such behaviour and total lack of any responsibilities towards his children deserve criticism and reflect on the Wife’s difficult job as being both parents to the children throughout the marriage.” (p 49 of the AR judgment)

(ii) The only indirect maintenance from the father was to allow the mother “to be so supported with his share of the [Tang Kap Wing] Tso’s income up to 1983”. (p 35 of the AR judgment)

(iii) The learned judge expressly recorded the father’s hostile view towards TTC but did not find there to be evidence that TTC was the driving force behind the AR Proceedings.

“[The father’s allegation] that the entire driving force behind the divorce/ancillary proceedings was TTC who, having squandered with the mother the vast majority of their substantial inheritance, now has to resort to living with the mother and utilizing funds borrowed from G.E. Capital (HK) Ltd and secured against the very roof over her head.  In fact, the court was told that TTC had issued and pursued proceedings between the father in another High Court action in 1999 which should lead one to surmise that he was the driving force behind those proceedings.

There is no doubt that the Wife is extremely close to her 2 children while there is absolutely no love lost between them and the Husband, as admitted by him, whilst the son may have assisted the Wife in these proceedings, which is not at all surprising in view of their good relationship, there is however no evidence that he was the driving force behind these proceedings or that he is to get any benefit directly out of them other than the fact that any award to his mother may release him of his financial support for her.”  (p 54-55 of the AR judgment)

5^th Action HCA 3 of 2006 (the Trespass Action)

35.Two months after the father’s death, the executors started the Trespass Action against TTC and Lam Kuen for trespassing the RP of Lot No. 1927 in DD 124 of Yuen Long (“the Land”), which belonged to the father.  TTC’s defence was that following the settlement of the TKWT Action, the father had authorized him to deal with the Land and to collect rent for TTC’s own use.  That defence was rejected by Mr Recorder Yuen SC in his judgment dated 29 April 2010. The following findings of fact and reasons were relevant to the present case:

(i)  That the father had not authorized TTC to deal with the Land on his behalf. 

“(1) the alleged authorization is inherently improbable given the poor relationship between the Deceased and the 1^st defendant; (2) there was neither any need nor any reason for the alleged authorization as the Deceased could handle the matter without the assistance of the 1^st defendant; (3) the evidence and testimonies of the defendants are inconsistent and self-contradicting; and (4) the defendants are unreliable witnesses.” (para 28, 30, 31 of the judgment)

(ii)  That the relationship between the father and TTC following the settlement of the TKWT Action could neither be good nor cordial, but poor. 

“[TCC] accepted that his relationship with [the father] turned bad since 1971.  Although [TCC] suggested that his relationship with the [father] had improved shortly after the settlement, I find it difficult to accept this alleged sudden improvement.  Thus, it is most unlikely that the [father] would shortly after the settlement authorize [TTC] to deal with the Land on his behalf.” (para 32 of the judgment)

(iii)  Having regard to the date of the will and its contents, Mr Recorder Yuen SC found that there was no need to authorize TTC to deal with the Land:

“Having put in place such an arrangement, it is most unlikely that the Deceased would authorize [TTC] to deal with the Land.  The relationship between the [executors] and [TTC] have never been good. In fact, there was at the time hardly any relationship at the time.  The Deceased surely knew about this. As a father with such knowledge and in such circumstances, it was most unlikely that the Deceased would on the one hand leave his assets to be administered by [the executors] and yet on the other hand authorized [TTC] to deal with the Land.” (para 36 of the judgment)

“… There was no need for the Deceased to authorize [TTC] to deal with the Land.  The Deceased had other options.  He could have dealt with the Land by himself.  He could instruct the two or three staff (who, as stated above, assisted the Deceased to deal with the lands owned by the Deceased and his brothers) to deal with it.  Alternatively, the Deceased could ask [the executors] (especially Mr Robert Tang) to deal with the Land. Since the Deceased trusted the [executors] and appointed them as the executors of his estate, there was no reason why the Deceased would not also trust that the [executors] could deal with the Land if he found it necessary to have someone to assist him.” (para 37 of the judgment)

(iv)  The relationship between the father and TTC from 1999 to end of 2004 could not possibly be a good one.

“In the absence of any suggestion or evidence that some events took place after early 2003 which led to a deterioration of the relationship between the Deceased and [TTC], the [TLT Action] and the Codicil show that the relationship between [TTC] and the Deceased during the period from 1999 to end of 2004 could not possibly be a good one. Instead the Deceased must have a very strong negative feeling towards [TTC]; otherwise the Codicil would not have been made in such an unusual way.” (para 57 of the judgment)

(v)  There was no objective reason for the father to appoint TTC as his agent (para 58 of the judgment).

(vi)  TTC did not have any actual or implied authority to deal with Lam Kuen; nor had the father made any representation to Lam Kuen regarding TTC’s authority (para 62 of the judgment).

(vii)  TTC and Lam Kuen were unreliable witnesses.  Their lack of credibility was not confined to the authorization issue but also the alleged existence of a lease and its renewal (para 64 of the judgment).

(viii)  The original lease book was not produced at the trial.  Mr Recorder Yuen SC had serious doubt as to the genuineness of the 2 rental receipts (para 66 of the judgment).

6^th Action: HCAP 7 of 2006 (the Probate Action)

36.TTC opposed admitting the father’s will to probate.  In the end he did not oppose the executors’ application to strike out his defence and counterclaim.  There were no findings of fact relevant to the present case.

37.I now proceed to analyze the issues.

A.  WHETHER OR NOT TTC WAS WHOLLY OR SUBSTANTIALLY MAINTAINED BY THE FATHER IMMEDIATELY BEFORE THE LATTER’S DEATH

38.The word “immediately” plainly confined the court to the basis or arrangement subsisting at the moment before death, and excludes whatever previously subsisted but has ended, and the state of affairs under it: Re Beaumont (deceased) [1980] 1 All ER 266, Sir Robert Megarry VC, at 272c; Re Wilkinson (deceased) [1978] 1 All ER 221, Arnold J at 222j.

39.It is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which had to be to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death: Jelley v Iliffe [1981] 2 All ER 29, 34j-35a; 38e-f.

40.The maintenance should have been provided otherwise than for full valuable consideration: section 3(3); the Re Beaumont (deceased) [1980] 1 All ER 266, Sir Robert Megarry VC, at 271b.

41.In the present case, the applicant alleged 2 forms of maintenance: free accommodation at the ancestral home and rental income from properties.  There was no evidence that such maintenance was otherwise than for valuable consideration.  Even if the effort spent by TTC in dealing with tenants could be treated as valuable consideration, it was insignificant consideration for the huge rental income.

Maintenance in the form of free accommodation at the ancestral home

42.Provision of rent free accommodation can be a form of maintenance: Jelley v Iliffe [1981] 2 All ER 29.

43.TTC claimed that he has all along been living at the ancestral home, which was the birth place of his father and him, and had kept his things there.  He is still living there as part of his residence adjacent to another village home.  The ancestral home was provided to him by his father as a home, passed on from generation to generation in memory of ancestors.  It was a place to worship the ancestors.  He was not a trespasser but had birth right.  It was not a gift in terms of transfer of title but as the comfort of a home.  TTC believed that no one had the right to evict him. This house had been given to the grandfather’s fong (not applicant’s fong). His father had never asked him to leave the ancestral home because the ancestor’s tablets are there.  As the eldest son, the father was responsible for worshipping the ancestors.  TTC had all along been responsible for this ritual and it was natural for him to do the upkeep and repair.  He claimed that the father had instructed him to rebuild it but the plan was stalled because of SARS and the intervention of Madam Yip.  TTC, however, maintained it with the rent allegedly received.

44.Robert’s evidence in this aspect was scant.  All that he said in his 5^th affirmation was that he did not agree that the right of occupation of the ancestral home had passed to TTC and that TTC had not produced evidence in support. 

45.TTC has produced some evidence of the alleged occupation of the ancestral home, e.g. an electricity bill in the name of the grandfather and invoices for the repair costs (but not all of them referred to the address of the ancestral home).  Neither party has produced eg photos as to the state of occupation.

46.The land on which the ancestral home stands was registered in the name of Tang Chok (or “Tsak”) Hing Tso (the great grand-uncle’s) and Tang Chik Fook (great grandfather of TTC) in the ratio of ½ and ½.  The father had no registered interest and the land was not on the schedule attached to the grant of probate of the father’s estate.  There was no evidence as to whether or not the grandfather died intestate so that the father could be regarded as having interest in this piece of land.  There was no evidence that Tang Chok Hing Tso (with male descendants) had waived their rights over this piece of land.  How the father could have given it to TTC as a home was unclear.  Accordingly, even if TTC had been provided with accommodation at the ancestral home, it was not shown to be provided “by the deceased” within the meaning of section 3(1)(vi).

47.Mr Yeung SC, leading Ms Wong, pointed out the contradictions in TTC’s evidence.  In his witness statements filed in 2001 for the TLT Action, TTC described his address as at Sau Fu Street, Yuen Long, which was the home of his mother, purchased with funds from his maternal grandfather in the 1960’s.  By then, he had returned from Canada to live in Hong Kong.  TTC explained under cross-examination that he used this address for ease of collecting mail because mail to the ancestral home in a village could easily be lost.  He claimed that he did not live at the ancestral home all the time.  He would return there once, twice or three times a week to visit his grandmother who lived there.  However, that was the time when he was in primary and secondary school.  His grandmother had died in 1996.

48.In his affirmation filed in 2007 in HCAP 7/2006, he used the address of no. 81, Sun Wai, Ha Tsuen.  The reason for change to this address was not apparent.  Nor was identity of the owner/occupier.

49.If TTC was living at the ancestral home and had a correspondence address, why would he need another village house?

50.His witness (Tang Chik Leung) testified that TTC did not live at the ancestral home before but only in the recent 5-6 years. TTC was not present there always; he lived elsewhere and it was difficult to locate him to pay him rent.

51.In the light of such evidence, the extent to which TTC used the ancestral home was in doubt.  If he did not live there but just visited the ancestral home to worship ancestors, he was not “maintained” by the father.  If he had alternative accommodation, TTC might not be “wholly or substantially” maintained by his father.  In either case, he failed to meet the requirements of section 3(1)(vi) on the issue of accommodation.

Maintenance in the form of rental income from properties

52.I approach this aspect by examining the effect of findings of facts in previous Actions, the lands allegedly covered by the father’s authorization, the evidence of the defence witnesses, the amount of rent allegedly collected, and Robert’s evidence. 

The effect of findings of facts in previous Actions

53.The findings were that the father had little love and affection for TTC.  There had been no financial provision from the father for accommodation, living expenses, education and wedding banquet.  He even refused to attend TTC’s wedding.

54.Upon conclusion of the TWKT action 1978, the father had lost his inheritance status with the Tang Kap Wing Tso, 60% of the Tso properties and income from the 6 Entities and incurred substantial costs.

55.The father had intended the settlement under the consent order to achieve a financial clean break from the grandmother, the mother, TTC and her sister.[1] Yet he was ordered to pay $12 million to the mother and bear costs under the AR judgment.  To the father, TTC “was the entire driving force behind” the AR Proceedings and TLT Action[2]. 

56.The various pieces of litigation were hostile and took some years for each to come to a conclusion.  Mr Recorder Yuen SC’s findings that the father and TTC were not in a harmonious relationship was from after the consent order to the end of 2004, which virtually covered the whole period of the alleged collection of rent by TTC.  If, as found by Recorder Yuen SC, the father had not authorized TTC to collect rent for one piece of Land for the reasons stated in his judgment, why would the father authorize TTC to do so over all his properties?

57.The father’s stance to completely disinherit the mother and her children had been consistent ever since the institution of the TKWT Action until he made his will (in 1991) and codicil (in 2004 after the ARP Proceedings were over).  A father who had enjoyed harmonious relationship with a son would not have expressed such strong resentment towards the son.  To this, TTC’s explanation was that he had been told by Robert that the father was in poor mental state and the codicil was thrust to him after an operation.  It is unbelievable that Robert who was on an opposing front would have made such damaging admission to TTC.  TTC’s evidence was also inconsistent with the medical certificate made on the same date as the codicil affirming the testamentary fitness of the father.  I disbelieve TTC’s explanation in this regard.

58.Obviously, in the light of such background, TTC had an uphill task in trying to convince the court that the father entrusted him with such an important task over his properties.  He tried to water down the effect of the findings of fact.

59.TTC claimed that he had a close relationship with his father even in 1963 when he was aged 11.  He contradicted his own witness statement dated 19/2/2001 in the TLT Action, which stated that the father,

“had never treated me as his son and he deserted my mother (i.e. Madam Liu) when I was a small child and I was raised by my mother and the widow of Tang Kap Wing Tso.  I had little contact with the Deceased.”

TTC explained that that was limited to the time when he was young. 

60.He claimed that his relationship with the father improved after the light the lantern agreement and the father had indulged him in material enjoyment.  The TKWT Action and TLT Action were settled “happily”. Relationship with the father had turned harmonious because the father was trying to return TTC’s favour of saving the parent’s marriage and taking care of the mother and grandmother.  It was also a traditional practice for the father to ask the son to collect the rental.  They saw each other about once a month.  By 1996-98, they had been meeting each other more frequently, as often as TTC had wanted to, sometimes every other day, at the restaurant frequented by the father.  It was Madam Yip’s family who was trying to sabotage the father and son relationship.

61.If the relationship was harmonious, TTC could not explain why he took out the TLT Action 4 years after the father’s authorization was given.  The claim was just for a few hundred thousand dollars, quite insignificant compared to the receipt (on his case) of over $3,000,000 rent by then.  He admitted under cross-examination that he feared that in suing the father for $200,000 odd, the father would not let him collect the rent anymore. Despite that fear, his statement of claim made strong allegations against the father for having misled the managers of Tang Leuk Tso, and breached the consent order. TTC could not explain why he did not clarify the matter with the father before taking out the writ.  He said it was because his parents were then engaged in AR Proceedings and the TLT Action was a small matter which could be put aside.  However, the AR Proceedings were only commenced in 2000.  He then claimed that after the writ in the TLT Action was issued, nothing was done.  That was untrue because he pursued the TLT Action for 1-½ years to the extent of filing witness statements.  TTC further claimed that it was the defendant manager (Tang Yue Chung) who was in charge of finance that he wanted to sue to find out the truth.  If that was the case, it was illogical for Tang to allegedly (without proof) provide about $150,000 to TTC to sue Tang himself.

62.A few months after the TLT action, the mother commenced the divorce proceedings.  She said that she did not know where the father was residing and hence could not start divorce proceedings earlier. That could not have happened if TTC (found by H H Judge Bruno Chan to have a close relationship with the mother) had been seeing the father so often then and could have told the mother about the father’s address.

63.The mother explained in the AR Proceedings that she did not sue the father for maintenance for years in deference to the grandmother. TTC’s version in this case, however, was that the father asked him to be the conciliator, promising him $2,000,000 in return.  He explained that his and the mother’s aforesaid averments were not inconsistent.  He knew that the grandmother would object to the divorce for fear of damage to reputation and that the mother would not take care of her.  So TTC tried to tell the mother not to divorce.  The conciliation was not successful and he did not get the $2 million because of the intervention of Madam Yip.  I find TTC’s version to be incredible.  If the father had asked him to be a conciliator, he would not have viewed TTC as the driving force behind the AR Proceedings.  TTC would not have failed to inform the mother about the father’s intention to conciliate.

64.The rent was supposed to have supported the mother.  If that did happen, the mother would not have stated in the AR Proceedings that she had never been maintained, directly or indirectly, by the father.  She would have mentioned it in the AR Proceedings, if anything, to justify seeking maintenance from the father.  She need not chase him up in the village for maintenance.  He need not avoid her or admit being financially irresponsible.

65.TTC was most evasive when asked whether he had told the mother about the father’s authorization.  He said he had “sort of mentioned it”, “briefly mentioned it”, “not sure”, “not mentioned formally”.  What was there to hide when the rental income was for her benefit and there was the incentive of $2 million for TTC? 

66.TTC’s contradictory answers under cross-examination and desperate attempts to water down the effect of findings of facts in previous Actions exposed the inherent improbabilities of his case that he had had a harmonious relationship with his father.  I find that TTC had not told the mother about the father’s authorization because it never existed.

Lands allegedly covered by the father’s authorization

67.The father had several hundred pieces of land. (Just the grant of probate showed 162 pieces of land, which would have been smaller than the number back in the 80’s and 90’s due to sale and resumption.)  The father did not give authorization over specific pieces of land.  How would TTC know which lands had lawful tenants and which had trespassers?  He said he applied common sense.  The tenants had never asked him for proof of the authorization.  I find all of these incredible.

68.TTC identified 4 categories of land to which the father’s authorization extended, in paragraph 4 of his 3^rd affirmation:

(a)  Those wholly owned by the father;

(b)  Those owned by the father and the uncles as tenants in common;

(c)  Those owned by the great grandfather; and

(d)  Those partially owned by the great grandfather. 

69.TTC averred that all along the father and the uncles received rental from lands in categories (b) to (d) under their respective control and would keep the same for their own use without sharing with or being accountable to one another.  TTC could not explain why he was authorized to and was able to collect rent for those categories. Under cross-examination, all he could say was that small sums were involved; his uncles were lazy; there was no need to account the rent received and that the rents would be accounted for in due course. 

70.I have summarized in a table in Annex A the alleged leases by TTC as mentioned in paragraphs 7(a) to (p) and 9 of his 3^rd affirmation.  

71.Annex A shows that a lot of lands did not belong or wholly belong to the father.  The sums collected for the uncles or other unknown owners were not small as alleged by TTC in paragraph 69.

72.The shaded rows in Annex A concerned 2 related tenants – Lam Kuen and his company Pak Yick Construction Engineering Company (“Pak Yick”).  Those 2 tenants were most dubious.  Lam Kuen was a defendant in the Trespass Action.  Notwithstanding rejection of the defence by Recorder Yuen SC, TTC sought to re-open the issue under item 7(c).

73.Despite the fact that Pak Yick and Lam Kuen had not paid rent regularly, TTC saw fit to re-lease or make new leases with them. TTC could not explain why.  Lam Kuen said that TTC wanted him to be rich.  Such conduct on the part of TTC was against commercial sense and against the father’s authorization to turn the lands into productive assets.

74.Similarly, the lease under item 7(a) also got renewed despite the fact that the tenant had not paid rent for a year in the first lease.  Robert produced a stamped tenancy agreement prepared by solicitors and signed by the father leasing out the land to a tenant from 1 June 1997 for 2 years, part of the period being covered by TTC’s alleged lease which was not stamped.  TTC never explained the overlap.

75.Re item 7(b), the father owned only 1/3 and yet TTC pocketed all the rental.  TTC said it was ancestral properties and so he did not check every piece of land to see if his father owned only 1/3.  He also claimed that he had asked for permission from one of his uncles after 2002/3 permission to collect the rent, which I find to be a recent invention in his oral evidence.

76.Re items 7(c) & 7(h), TTC admittedly got the lot no. wrong when he entered into the lease.

77.Re items 7(b), (d) & (k), according to Robert, the survey report made after the death of the father showed the land to be farm land, fish pond or wild vegetation that could hardly fetch the alleged rent received by TTC.

78.For item 7(p), his father allegedly had 10% interest in the land.  However, out of $1,000,000, $300,000 the father’s share kept by TTC.  TTC explained that the land was situated in the middle of a multitude of pieces of land; if his father was not willing to sell, other landowners could not.  I find this answer to be illogical as paragraph 7(p) was talking about rent received, not proceeds of sale of land.

79.For items 7(p) and 9, he did not even know which lot no. out of several hundreds in DD 125 were leased out. He said because he could see some lands in use and the tenants knew the lands were his.  He did not specify on behalf of which Tso/Tong he leased out paragraph 7(p).  It was under cross-examination that he said it was the Tang Leuk Tso.

80.For some items, the tenancy agreement was not produced despite TTC said there was written agreement, eg item 7(i).

81.Overall, what TTC did was not in accordance with the father’s authorization.  He dealt with only 44 pieces of land out of over a hundred.  He did not evict tenants or sub-tenants who failed to pay rent.  He did not sue for arrears of rent. 

82.It was hard to believe that a person with a certificate in estate management like him failed to have a list of properties when there were so many occupants with different lease terms.  He did not keep accounts.  There was no pattern for issuing rental receipts.  He did not have the notion of paying tax.  He said that there was no payment of tax within “the trade”.  He even said that the user had to bear the tax as well. 

83.His definition of oral agreement (which could be terminated at any time) and written agreement was devoid of common sense.  His notion that collection of rent or renewing the lease was not regarded by him as “handling the lease” was illogical. 

84.The mother’s evidence on the authorization was not helpful and evasive. She said when TTC asked the father for money, the father said, “Rent for the agricultural lands could not be collected; why don’t you go and collect it?”  She said the father told him to collect what belonged to everyone (公家) but she was not sure which pieces of land they were, whether TTC had collected the rent as told and how much was collected.  I reject her evidence in this respect.

85.TTC’s case as disclosed in Annex A was totally unreliable.

Lam Kuen’s evidence on the father’s authorization

86.Allegedly at the time of renewal of lease in 1992, the father and TTC were present.  However the affirmations of Lam Kuen, his oral testimony before Recorder Yuen and before me were full of inconsistencies.

(i)  He claimed to have known the father in 1979 (before Mr Recorder Yuen SC); in 1983 (affirmation filed in the Probate Action; and since he was a young child (oral evidence before me).  He could not explain the significance of 1979.

(ii)  In the Probate Action, Lam Kuen adopted TTC’s affirmation and said that it was the father who negotiated the renewal of the lease with Lam Kuen.  But in his own affirmation [filed in the present case], he said it was TTC who negotiated the lease with Lam Kuen and the father had no comment.

(iii)  Only 2 receipts were produced in the Trespass Action 2006 but 7 are now produced in the present action for the same piece of Land. 

87.A lot of other rental receipts allegedly concerning Lam  Kuen/Pak Yick have also been produced.  All of them bore what purported to be TTC’s signatures in traditional Chinese characters, different from the simplified Chinese characters he used to sign his affirmations.   However, in Lam Kuen’s affirmation filed in the Probate Action, he said that TTC had never issued any receipt, nor had Lam Kuen asked for any. 

88.The evidence of TTC and Lam Kuen was inconsistent and spoke of collusion between them.  I reject the evidence of both.

Evidence of Lee Kwok Pang

89.Lee Kwok Pang said the father told him and Tang Chik Leung that he had authorized TTC to fully manage the lands within DD 125; and monies could be directly handed to TTC who could use the same.  Mr Lee did not feel surprised as it was what villagers would do and the relationship between the father and the son was harmonious.  He had, on 3 occasions given in total more than $1,000,000 rental to TTC, of which over $300,000 belonged to the father.  He did not explain why he gave somebody else’ share to TTC too.

90.Lee Kwok Pang has been an estate manager for 20 odd years.  He could not have missed the importance of stating the lot no. on the rent receipts.  He claimed to have a document recording the lot no. but that was not available when TTC asked him for a copy.  He later found it. However, that document was not produced even though Mr Yeung SC asked if Mr Hui, TTC’s counsel, wanted to make an application. So whether the land which Lee Kwok Pang leased belonged to the father remained in doubt.

91.I reject his evidence.

Evidence of Tang Chik Leung

92.In his statement, Tang Chik Leung said that the past leases of 5 lots of land were negotiated with the father.  He could not say which lots of land within DD 125 they were due to the long lapse of time.  The father merely described the land as “the 2 lots of land at the village mouth near the bus stop; the one you [Tang Chik Leung] had been leasing; you can negotiate with Ah Chue [TTC].” I find it strange that as an estate agent, Tang Chik Leung would have been so imprecise. 

93.It was strange that despite having TTC introduced to him in 1995 and the father’s assurance that leasing of those lots should be dealt with directly with TTC who had full authority, Tang Chik Leung had twice asked the father about the payee of the rent – in the same year and in 2004.  Tang Chik Leung had paid TTC 2 sums of $200,000 and $250,000.  Rent was paid once every few years because the father did not live at the village.  TTC was not always there and he would suddenly come back, so Tang asked the father for confirmation of the payee.  Besides, Tang Chik Leung had also left for some time and only returned in 2003. 

94.In accordance with practice, no receipt for rent was issued or required.  There was a lease book (批簿) which was a lease of paper containing information on the lot no., duration of the lease and rent received.  If a lease was renewed, a paragraph would be endorsed on the original lease book. The tenant and the landlord would each have a copy.  Tang Chik Leung had not kept the documents.  He did not file tax returns for what he called “small” amounts of rent.  He did not see the need to keep the lease books to cater for government resumption of land. 

95.Tang Chik Leung said that he last saw the father in September 2003 but could not remember the context.  He felt that the relationship between the father and TTC was harmonious. 

96.Even if Tang Chik Leung’s evidence was believed, there was no proof that the land he leased belonged to the father.  I am also not satisfied that the father had unequivocally authorized TTC to collect rent as Tang Chik Leung wanted the court to believe.

Amount of rent allegedly collected

97.The amount of rent collected for each year varied greatly:

Year	Amount
1996	958,990
1997	1,254,740
1998	591,685
1999	522,000
2000	30,000
2001	7,500
2002	400,000
2003	266,000
2004	1,689,320
2005	1,530,320
2006	20,720
Total	$7,271,275

TTC claimed that before 1990s, the lands were mainly used for agricultural purpose.  From 1990s onwards, people began to convert them into cargo depots or car ports, so rental increased substantially.

98.It was apparent that TTC could not have survived with the rent allegedly received in 2000 and 2001.  He said that Tang Yue Chung lent him $300,000 odd (including $150,000 under the TLT Action) which he had repaid in 2002.  He also said that his father gave him $300,000 to $400,000 in 1998/99, being monies from the common fund (阿公).  These were recent inventions without documentary proof and I reject the same.

99.Income for 2004 and 2005 was most relevant as it was in the period immediately before the death of the father.  In 2006, little rent was received because the executors quickly took over control of the leases. 

100.Mr Yeung SC submitted, and I agree, that alleged rental income from properties not registered in the name of the father should not be taken into account.  That applied to (i) Lot no. 1490 in DD 125, the land search record of which stated that Yeung Fook Mui and Tang Ying Yip were the administrators of Tang Chik Fuk in the land; and (ii) DD 125 where no lot number had been identified to verify if it belonged to the father.

101.Moreover, Mr Recorder Yuen SC has held in the Trepass Action that the father had not authorized the lease of the Land to Lam Kuen.  Such income should be discounted as well.  Given my doubts over the leases to Lam Kuen/Pak Yick, the alleged rental income from both of them should be discounted. 

102.Counsel has jointly prepared a table setting out 3 scenarios of what was alleged and adjusted to be the rental income for 2004-2005.

Year	Alleged rental received by TTC	Scenario 1 Adjusted rental to count only father’s share and exclude rent from Lam Kuen	Scenario 2 Adjusted rental to count only father’s share and exclude rent from Lam Kuen & Pak Yick	Scenario 3 Adjusted rental to count only father’s share and exclude rent from Lam Kuen, Pak Yick & unidentified lot in DD 125
2004	$1,689,320	$749,846	$281,180	$31,180
2005	$1,530,320	$496,513	$43,513	$43,513

I accept scenario 3 for the reasons given in the 2 preceding paragraphs.  The adjusted income for scenario 3 (or even 2) could hardly support TTC’s case that he had been “wholly or substantially” maintained by the father in those 2 years.  TTC has grossly exaggerated his case.

Robert’s evidence

103.According to Robert, the father had repeatedly told him that he (the father) would literally not give the mother or TTC a single cent after TTC had got all those assets from the Tang Kap Wing Tso.  According to Robert’s 5^th affirmation, the father had declared to his relatives that he would leave his assets to Madam Yip and her children.  In 1988/89, the father had told TTC that he would not leave any money to the mother or her children. 

104.The father was extremely bitter for what had happened in the AR Proceedings.  His health deteriorated steadily afterwards. He had on numerous occasions expressed to Robert his disgust towards the mother and TTC, calling TTC by nasty names.  The father reminded Robert to be careful of them.

105.Robert has not described the circumstances of all these remarks.  However, having regard to the litigious circumstances from since 1978 till 2002, I am satisfied that the father would have at some stage expressed those sentiments.

106.Further, the indisputable evidence was that the father and uncles had sued a tenant under HCA 11105 of 1993.  There was hardly any reason for the father to enlist the assistance of TTC in relation to his other lands.

Summary on Issue A

107.I disbelieve TTC’s case that the relationship between father and son was harmonious, that the father’s authorization existed or that he had collected rent for the father.  Even if he had collected rent for the father, the adjusted rent under scenario 3 would not have supported his case that he had been “wholly or substantially” maintained by the father.  Likewise, his occupation of the ancestral home had not been proved to have been a form of “whole or substantial” maintenance “by the father”.  TTC was not qualified to make this application under section 3(1)(vi).  The claim should be dismissed.

B.  WHETHER OR NOT THE WILL HAD MADE REASONABLE FINANCIAL PROVISION FOR TTC

108.I deal with Issue B in case I am wrong in my conclusion in the preceding paragraph.  For present purposes, the factors under section 5(1)(b), (c) and (f) are irrelevant.

Section 5(1)(a): The financial resources and financial need which TTC has or is likely to have in the foreseeable future

109.In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the  financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities: section 5(8).

110.At the age of 60, not having completed a university degree, with limited working experience, allegedly not having been employed for years, it might be difficult for TTC to find a job.  The property of Tang Kap Wing Tso was said to have dried up from maintaining TTC, his mother and grandmother.  The remaining part was his beneficial interest in the Tang Leuk Tso registered under the Tang Kap Wing Tso.  TTC said that after the loss of business in 1994, he had to repay his debts.  His debts and liabilities had intensified after the death of the father because he owed a certain amount of legal costs.  He had not disclosed the extent of his debts and liabilities.

111.TTC had already received substantial income and assets as a result of the TKWT Action and TLT Action.  Robert stated that most of the assets of the Tang Kap Wing Tso had been sold between 1983 and 1996 at the price of $4,423,334.80.  The total income from the Six Entities between 1983 and 2000 was $15,614,691.58, which TTC never rebutted.  The TLT Action brought in $800,000.  TTC had received rental income of over $7 million from the father’s lands in 10 years. 

112.TTC only denied in oral evidence ever receiving the $15.6 million income.  He said it would have implied that the ancestors had sold lands for more than $100,000,000 before he could get that amount.  The properties of the 6 Entities were located in remote areas and worth little.  He could only get 1/100 from the Tso.  Even if there had been government resumption, only about $100,000 or $200,000 was obtained. The biggest share ($1 to $1.5 million) was given to Tang Ying Yip and that was in 1990/91 before TTC ran his restaurant business.  This was a late piece of evidence unsupported by documents.  I reject the same.

113.TTC had not disclosed in detail how he had applied those assets and income save to say in his 2^nd affirmation that he had used them for education of his 2 sons, living expenses for his family and to take care of the grandmother who died 13 years after the consent order.  There was evidence from the AR judgment that the maintenance to the mother had increased after the settlement of the TKWT Action to the extent that she  could spend up to $60,000 to $90,000 per month (para 42-44 of the AR judgment).  TTC had also spent CAD 1 million to buy a house for his ex-wife in Canada.  Taking those expenses into account, I am unable to share the father’s sentiments expressed in the AR Proceedings that TTC had “squandered” with the mother the vast majority of their substantial inheritance.  I am prepared to find that he had spent his litigation gains on his family.

114.Mr Yeung SC pointed out that TTC had failed to disclose the availability of social security in Canada for his family. However, I do not consider this to be relevant.  The burden of supporting an applicant who is qualified under the Ordinance should fall on the estate and not the state. 

115.As for financial needs, it was only in the 6^th affirmation filed after the pre-trial review that TTC saw fit to disclose what he intended to claim as maintenance for himself, his wife and the 2^nd and 3^rd sons who have come of age.  The court can consider the needs as at the date of trial: section 5(7).  The total monthly expenses were said to be $112,491.  He had supported his alleged financial needs with limited documents.  The court could hardly discern any pattern out of them.

116.I accept that TTC maintained a home in Canada and in Hong Kong.  His wife is aged about 50 and is a housewife.  She clearly needed financial support.  However, there was no reason why the 2^nd son could not be financially independent for, notwithstanding his failure to complete his university degree in education, he does part-time tutoring.  His income was not disclosed.  He intended to continue with his education degree in May 2012.  The 3^rd son may need only a short period of financial support until he shall complete his university education.

117.There was, however, no proof as to the costs for repair ($60,000 per annum) nor costs of re-building ($4,000,000) the ancestral home.  I therefore make no provision for the same.

118.With such large rental income allegedly received from the father’s lands, it would prima facie be objectively unreasonable for the will not to make provision for him.   

119.Nevertheless, the financial position of an applicant may determine the application.  However rich the deceased, if the applicant has sufficient financial resources and no financial needs, it would not be necessary for the court to look further.  Espinosa v Bourke [1999] 1 FLR 747,752A, Butler-Sloss LJ.

120.TTC has not been frank in the disclosure of his earning capacity.  His mother disclosed under cross-examination that he was an estate agent.  What was not disclosed was whether he was a proprietor or employee; whether he is still an estate agent; what was/is his income and period of engagement in estate agency work.  Further, TTC failed to disclose the resources on which he lived in those years when rental income was minimal (2000 and 2001), and in the 6 years after the father’s death.  He also failed to disclose which relative was able to support his family in Canada.  Such failure to disclose caused me to draw adverse inference against him that he was able to support his family even without maintenance from the father.

Section 5(1)(d): Any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased

121.The term “obligations and responsibilities” is to be taken into account in a broad sense of obligation and responsibility, including those that are not binding in law.  Espinosa v Bourke [1999] 1 FLR 747, 755E, Butler-Sloss LJ; 760D, Aldous LJ.

122.They must be those that the deceased had immediately before his death: In re Jennings, deceased, [1994] Ch 286

“While it is true that it requires regard to be had to obligations and responsibilities which the deceased ‘had’, that cannot mean ‘had at any time in the past’.  At all events as a general rule, that provision can only refer to obligations and responsibilities which the deceased had immediately before his death.  An Act intended to facilitate the making of reasonable financial provision cannot have been intended to revive defunct obligations and responsibilities as a basis for making it.  Nor if they do not fall within a specific provision such as [section 5(1)(d) of the Ordinance], can they be prayed in aid under a general provision such as [section 5(1)(g) of the Ordinance].  (at 296D-E, Nourse LJ)

It is not the purpose of the Ordinance to punish or redress past bad or unfeeling parental behaviour where that behaviour does not still impinge on the applicant’s present financial situation.” (at 301D, Henry LJ)

123.Hence, a neglected past moral obligation, e.g. of a father to support his minor son, cannot be resurrected to found a present claim by the adult son: Re Jennings (deceased); Harlow v National Westminster Bank plc [1994] Ch 286, at 289D, 296D-E.  An adult son of the deceased who is able to earn, and earns, his own living, has to show some special circumstances, typically a moral obligation of the deceased towards him, before the question as to whether the disposition was such as not to make reasonable financial provision for the applicant can be determined in his favour: at 295F, Nourse LJ. 

124.Mutual wills of parents leaving their respective estates to each other with the intention that the son would inherit the estate created such a moral obligation on the deceased father:  Re Goodchild (deceased), Goodchild v Goodchild [1997] 1 WLR 1216. 

125.Likewise, the father’s promise to the mother that he would leave her portfolio of shares to the daughter was a weighty factor in favour of the applicant daughter, despite the father’s express statement in his will that he had made no provision for the daughter because during his lifetime she has been adequately provided for and she has shown a degree of irresponsibility: Espinosa v Bourke [1999] 1FLR 747.

126.In the present case, the failure of the father to discharge his obligations towards TTC during his childhood could not justify TTC’s claim.  However, the “light the lantern agreement” came under a different category.  The mother had deposed to this incident although the father had denied it in the AR Proceedings.  No findings had been made in the previous Actions.

127.The first 7 pages of the AR judgment have summarized the relationship between the father and the mother, which had started on the wrong footing ever since the marriage arranged by the grandfather and respective family head against the wish of the father (page 11 of the AR judgment).  There was no love between them.  They had never lived as a household.  The mother was deserted by the father (page 12 of the AR judgment).  Before the marriage, she already knew that the father had another woman Madam So.  Not long afterwards, Madam So was taken as a concubine with the approval of the grandmother (para 18 of the AR judgment).  It would not be surprising for an indigenous villager to have his sons recognized by his clan.  By the time the father brought Robert and his brother home, the mother had been married to the father for 10 odd years.  The grandmother disliked the job of Madam Yip.  Many elders spoke bad words of the father.  It was hard to believe that the mother would have unconditionally allowed Madam Yip’s sons to light the lantern in those circumstances.  It was true that some elders were present when the father made the promise and they never suggested that the mother should put it into writing. There was no proof of requirement or tradition to do so. I find the existence of the light the lantern agreement to be credible.

128.The father did not abide by his promise when making the will.  His conduct consistently showed that he had no intention to honour that agreement.  There was no evidence that, at the time of the settlement of the TKWT Action and TLT Action, anyone had taken into account that promise and hence had it overriden.  In any case, those settlements and even the $7 million rental income were insignificant compared to the position if the father had honoured that agreement.  I find that the father had breached his moral obligation under the “light the lantern agreement”.

Section 5(1)(e): The size and nature of the net estate of the deceased

129.The size of the estate was set out in the schedule to the grant of probate.  As at 29/1/2002, the liquid assets of the estate amounted to about $40 million.  The value of the 162 pieces of lands as at the date of the grant was nominally $20,000,000.  Such value will have increased manifold by now or upon resumption of lands by the government.  Mr Yeung SC submitted that in relation to other properties, the father’s beneficial interest as an indigenous male villager in any Tso or Tong properties were only life interests which had ceased upon his death.  TTC had not rebutted the same.  I accept Mr Yeung SC’s submission.

130.There is no evidence from TTC about the true value of the lands but it would be unreasonable to ignore their potential in bringing in millions of dollars upon sale or resumption by the government.  However, even at the nominal value as stated in the schedule to the grant of probate, I am prepared to hold that the estate will be capable of meeting the level of monthly maintenance now sought by TTC.

Section 5(1)(g): Any other matter, including the conduct of TTC or any other person

131.The will and codicil were strong pieces of evidence that the father did not want to make any financial provision for TTC.  However, any view expressed by the deceased that he wishes a particular person to benefit will generally be of little significance because Issue B is not subjective but objective: In re Goodwin [1969] 1 Ch 283, per Megarry J at 287G; In re Coventry [1980] 1 Ch. 461, at 488 H-489A, per Goff LJ.

132.Under section 5(1)(g), the court needs to consider if TTC needed further education and training: section 5(4) of the Ordinance.  TTC did not suggest that he needed such.

Summary on Issue B

133.Even placing full weight on the light the lantern agreement, the court is unable to assess the financial position of TTC for lack of information on his earning capacity and how he had met those bad years in 2000 to 2001 and after the father’s death.  Adverse inference was drawn against him.  In any case, the adjusted rent was only $43,513 a year.  TTC has failed to prove that objectively the will has not made reasonable financial provision for him.

C.  WHETHER DISCRETION SHOULD BE EXERCISED TO MAKE REASONABLE PROVISION FOR TTC AND, IF SO, WHAT IT SHOULD BE

134.Again, I consider this only for completeness sake in case my conclusion in the preceding paragraph is wrong.

The principles

135.The court should have regard to section 5(1) and all the circumstances of the case:

“What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.”: In re Coventry, 485C-D, Goff LJ.

136.Maintenance can take a variety of forms:

“The word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him.  The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature.  This does not mean that the provision need be by way of income payments.  The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure.”  In re Dennis, deceased [1981] 2 All ER 140, 145h-j, Browne-Wilkinson J; approved by the English Court of Appeal in In re Jennings, deceased, at 297H-298A, Nourse LJ; applied in Espinosa v Bourke, 758E-H.

137.However, the maintenance must be such as is reasonably required for his maintenance:  In re Jennings, deceased, [1994] Ch 286, 295C-D, Nourse LJ, following In re Coventry, deceased [1980] Ch 461, 472F-G, Oliver J.

138.Any order that I were to make would not touch the lands but would consume only part of the liquid assets.  Notwithstanding that the claim was for monthly maintenance, I would have capitalized the monthly amounts using a multiplier of, say, 10 years.  That will achieve a financial clean break between TTC and the estate and avoid animosity over enforcement.

139.If I had accepted the case of TTC on the father’s authorization, I would have given full weight to the light the lantern agreement and placed little weight on his earning capacity in view of TTC’s age (60).  Based on the adjusted rental income under scenario 3 and a multiplier of 20 years (as sought) and taking into account inflation, any lump sum would not be more than $1 million.

140.If I were to accept his case on free accommodation of the ancestral home, I would not order transfer of the ancestral home to TTC because of other people’s registered interest.  I would, rather, order a lump sum to enable him to purchase a small property in Yuen Long for him alone, for there was no evidence that the wife and sons had ever been maintained in the form of accommodation before the death of the father, or that they had ever lived at the ancestral home, or that they will return to reside in Hong Kong.  There was, however, no evidence as to the value of a reasonable property in Yuen Long to accommodate TTC and no lump sum can be awarded without speculation.

Conclusion

141.TTC has failed to satisfy section 3(1)(vi) of the Ordinance to show that immediately before the death of the father he had been wholly or substantially maintained by his father, in the form of free accommodation at the ancestral home or rent collected from his father’s lands.  He is not qualified to make an application under the Ordinance.  The father’s breach of his promise under the light the lantern agreement simply did not come into play.  I dismiss the claim in its entirety.

142.I make an order nisi that the applicant should bear the costs of this action on party and party basis and the executor’s own costs shall be borne out of the estate on trustee basis.

143.I thank counsel for their assistance.

Annex A - Alleged leases set out in paras 7(a) to (p) and 9 of TTC’s 3^rd affirmation

Mr Sammy Hui, instructed by Leung Kin & Co, for the applicant

Mr Keith Yeung SC and Ms Maggie Wong, instructed by Ho & Wong, for the 1^st respondent

Mr Keith Yeung SC and Ms Maggie Wong, instructed by Ho & Wong, assigned by the Legal Aid Department, for the 2^nd respondent