Chan Wan Yee v. Chan To Fun

HCAP 2/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 2 OF 2012

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J U D G M E N T

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1.The plaintiff in these proceedings seeks orders for the ratification of a will executed on 15 October 2005 by one Madam Sin Hing (冼卿), deceased (“the new will”), a declaration that the new will is validly executed, pronouncement of the new will in solemn form and giving the plaintiff the grant of probate to the estate of Madam Sin.

Background

2.The proceedings were necessitated by a caveat filed by the defendant on 27 January 2011.  The plaintiff served on the defendant a warning to caveator on 29 March 2011 and the defendant entered an appearance to the warning on 2 April 2011.  The defendant stated in the appearance that the new will was invalid, but did not give any ground thereof. 

3.The plaintiff then started this action on 30 January 2012.  The writ of summons and the affirmations in support of the plaintiff’s claim were served on the defendant at his address as stated in his caveat and appearance.  But he did not take part in the proceedings.  He did not file any defence or witness statement in opposition to the claim.  He also did not appear at the interlocutory hearings before the masters.

4.On 29 January 2013, the court fixed the trial to take place on 7 May 2013.  Notice of the same was duly sent to the defendant at his address stated on the caveat and appearance. 

Removal of stay

5.On 19 April 2013, the defendant applied for legal aid.  A memorandum of the application was duly filed by the Director of Legal Aid with the court. The proceedings were then stayed for 42 days commencing 19 April pursuant to the Legal Aid Ordinance. 

6.On 29 April, I fixed a hearing on 3 May at 9:30 am for consideration of whether the stay be removed.

7.At the hearing, the defendant accepted that service of the proceedings on him was good, but could not give any proper reason to explain why he only applied for legal aid at such a late stage.  He also said that the new will had many errors.  The testator, Madam Sin, deceased was his mother.  He did not know whether the new will was executed by his mother consciously as it had so many errors.  He also said that his relationship with his mother was good and he suspected that his mother might have left him out in the new will because of forgetfulness.  He also said that his mother never told him that he had no share in the new will.  His mother also had asthma.

8.Since the defendant could not provide any proper reason for his delay in applying for legal aid, I lifted the stay imposed by the Legal Aid Ordinance and ordered that the trial would take place on 7 May as originally scheduled.

The defendant’s application to adjourn the trial

9.On 7 May, the defendant said that he had only received the trial bundles on the previous day.  There were many issues that he could not understand.  He could not defend the case by himself as he had absolutely no ability to defend it.  If the Director of Legal Aid should refuse his application for legal aid, he would seek help from friends or volunteer lawyers. 

10.I then adjourned the trial to 10 May for him to study the papers, the plaintiff’s skeleton submission and authorities and to advise me on that day the problems that he faced and when he would be in a position to conduct his defence.

11.On 10 May, he said that from his reading of the papers, there were many suspicious circumstances, but he did not know how to put these in the context of the complicated probate law.  He submitted that as a matter of law whoever propounded the new will, the court had to be satisfied that all suspicious circumstances were removed. 

12.He further submitted that the plaintiff had not proved the capacity of the deceased to make the new will.  The plaintiff had also not proved the deceased’s knowledge and approval of its content.

13.He also referred to the errors in the will which the plaintiff sought ratification in these proceedings.

14.He also alleged that the plaintiff had in a family meeting mentioned the old will made by the deceased on 28 April 2003 (“the 2003 will”) but not the new will which is dated 15 October 2005.

15.He further alleged that the solicitor who helped Madam Sin to execute the new will had not explained its contents to Madam Sin. He also raised a number of other arguments to impinge on the validity of the new will.

Errors of the new will

16.The new will in fact had a number of errors. The first one being the Chinese surname of Madam Sin which was typed next to her English name at the top of the first page of the new will.  It should be “冼”，but the character as typed is “洗” with an additional stroke in the middle of the left hand side of the character.  This is a different Chinese character that appears very similar to “冼” but has a different sound and meaning. 

17.The next error is in sub-clause 2(iii)(f) which is the last line on the first page.  It states that the last beneficiary is Chan Hok Like to whom one share of the residuary estate was given.  But this sub-clause does not end with a full stop.  It ends with a semi-colon which gives rise to an expectation that there would be more provision after it. However, there is no sub-clause 2(iii)(g) or 2(iv) to follow on the next page. I set forth below sub-clause 2(iii) of this new will:

“(iii) To hold my residuary estate upon trust to divide the same into fourteen equal shares and to distribute the same to the following persons in the following manner for their respective use and benefit absolutely, that is to say:

(a) Four shares to my granddaughter the said Chan Wan Yee (陳韻怡)；

(b) Four shares to my son Chan To Hang (陳道亨);

(c) Two shares to my grandson Chan Hok Yat (陳學一);

(d) Two shares to my granddaughter Chan Wen Dzi (陳韻至);

(e) One share to my son Chan To Hay (陳道禧); and

(f) One share to my grandson Chan Hok Like (陳學禮);”

18.The third error is on the numbering of the clause after sub-clause 2(iii)(f).  I have already said that there is no sub-clause 2(iii)(g) or 2(iv).  If sub-clause 2(iii)(f) should conclude clause 2, then the next clause should be numbered “3”.  But the next clause at the top of the second page is numbered “4”.

19.Finally, there is a problem of the use of the proper Chinese character for the given name of Madam Sin.  The Chinese character used for her given name in her Hong Kong Identity Card is written in the usual and proper form of “卿”.  However, the Chinese character used in the new will is written in a variant form as “卿” which has a different middle part.  I note that the 2003 will also used this variant character for the given name of Madam Sin.  Since the Hong Kong Identity Card is usually used as proof of identity in legal transactions, it is important to use the name as written in the Chinese characters in the Hong Kong Identity Card in important legal documents like wills.

Adjournment of the trial but the defendant still did not file any defence

20.In the light of the submissions of the defendant for adjournment and the errors in the new will, I adjourned the trial to 19 July 2013.  I also allowed the defendant to cross-examine the plaintiff’s witnesses on their affirmations to ensure that the plaintiff will prove her case according to law.  But I did not allow the defendant to adduce any fact not already mentioned in the plaintiff’s affirmations.  The reason being that he had not filed any defence or witness statement to set out any ground of opposition.

21.I also told the defendant that if he would like to rely on any other reasons to oppose the plaintiff’s claim, he had to apply for leave to file a defence and witness statements to set out the same.  I also impressed upon him the urgency of the matter as the trial would take place soon. 

22.The defendant’s application for legal aid was refused on 21 June 2013.  But he applied for legal aid again on 5 July 2013. As a result, the trial fixed on 19 July 2013 was stayed and refixed to 16 December 2013.  His second application for legal aid was again dismissed on 8 October 2013. 

23.Despite the adjournment of the trial to 16 December 2013, the defendant still did not apply for leave to put in any defence or witness statement.  In this connection, I refer to O 76 r 9 of the Rules of High Court on the contents of pleadings in a probate action:

“Contents of pleadings (O. 76, r. 9)

(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.

(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would be entitled to an interest in the estate.

(3) Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say-

(a) that the will was not duly executed;

(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and

(c) that the execution of the will was obtained by undue influence or fraud,

shall be made by that party unless that other plea is also pleaded.”

The 2003 will

24.It is the plaintiff’s case that Madam Sin had made the 2003 will at the office of Yaddy Cheung & Co on 28 April 2003.  By the 2003 will, Madam Sin appointed the plaintiff as the sole executrix and trustee of the will.  She devised all her personal properties unto the plaintiff to pay her debts and funeral and testamentary expenses and estate and other duties. She then divided the residuary estate into 16 equal shares and distributed them as follows:

“(a) Four shares to my son Chan To Hang (陳道亨);

(b) Four shares to my granddaughter Chan Wan Yee (陳韻怡)；

(c) Two shares to my grandson Chan Hok Yat (陳學一);

(d) Two shares to my granddaughter Chan Wen Dzi (陳韻至);

(e) One share to my son Chan To Hay (陳道禧);

(f) One share to my son Chan To Chung (陳道宗);

(g) One share to my son Chan To Fun (陳道奮); and

(h) One share to my grandson Chan Hok Like (陳學禮).”

The evidence of Mak Tuen Yin Billy

25.On 15 October 2005, Madam Sin went to Yaddy Cheung & Co again to make the new will.  According to the evidence of Mr Mak Tuen Yin Billy, a senior clerk of Yaddy Cheung & Co at that time, Madam Sin arrived at this firm sometime after 11 am on that day having made a telephone call to Mr Mak beforehand on the same day.  She was attended to by Mr Mak in a conference room.  She told Mr Mak that she had the 2003 will prepared for her by this firm.  She produced the 2003 will to Mr Mak.  She then instructed Mr Mak to make a new will for her with the following changes:

(1) Her two sons Chan To Chung (陳道宗) and Chan To Fun (陳道奮) be removed from the beneficiaries of her residuary estate;

(2) Her residuary estate be divided into 14 instead of 16 equal shares; and

(3) The remaining beneficiaries would receive the same number of shares as in the 2003 will.

26.Mr Mak then read through the 2003 will and noted its contents.  He verified the identity of Madam Sin by checking her Hong Kong Identity Card against the particulars of the 2003 will.  He confirmed that her address was still the one stated in the 2003 will.  He also confirmed with her that the plaintiff would still be appointed the executrix of the new will to be prepared. 

27.With Madam Sin’s permission, he made copies of the 2003 will and her Hong Kong Identity Card.  He used the copy 2003 will as the basis of his instructions for the new will.  He used a pencil to mark on the copy 2003 will the changes that that had to be make in the new will.  He also struck through sub-clauses (f) and (g) which devised one share of the residuary estate to each of Chan To Chung and Chan To Fun.  He then proceeded to prepare the new will as Madam Sin wanted to execute it on the same day.

28.He could not locate the soft copy of the 2003 will from the computer database of the firm.  He therefore used a soft copy of a simple precedent to prepare the new will.

29.He copied all the contents of the 2003 will into the new will which included the clauses for revoking previous wills and testaments and the appointment of the plaintiff as the executrix of the new will.  He also copied the beneficiaries and their shares of the residuary estate save and except Chan To Chung and Chan To Fun and their shares.  He also changed the total number of shares from 16 to 14.  For the list of beneficiaries, he reversed the order of the first and second ones as appearing in the 2003 will and thus placed the plaintiff as the first beneficiary on the list of beneficiaries in the new will.  He then printed out the new will.  It had 3 pages including the back-sheet.  He then sealed it together with wax at the left upper corner.

30.After finishing with the preparation of the new will, he asked an assistant solicitor, Ms Luo Yanling to come to the conference room to witness the execution of the new will by Madam Sin.

31.Ms Luo came and inspected the 2003 will and the new will.  She then verified Madam Sin’s identity by checking her Hong Kong Identity Card and confirmed her wish to make the new will.  Madam Sin told Ms Luo that she wanted to exclude Chan To Chung and Chan To Fun as beneficiaries in her new will.  Ms Luo then confirmed with her the name of each of the beneficiaries and the number of shares of the residuary estate given to each of them respectively in the new will.

32.After Ms Luo had clearly and audibly interpreted the new will to Madam Sin and Madam Sin’s confirmation of her understanding of the same and that it was in accordance with her intentions, Madam Sin then executed the new will.  Mr Mak and Ms Luo also signed as witnesses to the execution.  The three of them also signed at the bottom of the first page and the back-sheet of the new will one after the other.  Ms Luo also signed as the interpreter who had interpreted the new will to Madam Sin.  In fact Mr Mak had also interpreted the new will to Madam Sin before Ms Luo did so.

33.After the new will was executed and the execution witnessed as aforesaid, Ms Luo left the conference room.  Mr Mak then made a photocopy of the new will for the firm’s record, gave the new will to Madam Sin, collected the costs from her, gave her a receipt and advised her not to staple the new will or fold it up but to keep it in a safe place preferably in a safe deposit box.

34.On 26 July 2010, the plaintiff went to Yaddy Cheung & Co for assistance to obtain grant of probate to Madam Sin’s estate as Madam Sin had passed away on 21 July 2010.  The plaintiff was attended to by Mr Mak.  Prior to going to the firm, the plaintiff had already telephoned a partner of the firm Mr Kenneth Ng about her visit.

35.In instructing Mr Mak to apply for grant of probate, the plaintiff gave Mr Mak the new will, Madam Sin’s death certificate and documents on Madam Sin’s assets.  Mr Mak then related the instructions to Mr Kenneth Ng.  Mr Ng later told him that there were the first three errors in the new will which I have referred to above.  Mr Ng did not mention the 4th problem which was the use of a variant Chinese character for the given name of Madam Sin.

36.After being told by Mr Ng about the errors in the new will, Mr Mak realised how he had made the errors.  For the error of typing “洗” instead of “冼”, he remembered that he had used the then available version of the input software called “Simplified Cangjie Input Method”〔速成輸入法〕.  For the character “冼”, he should have pressed the keys of “i” and “u”. But he erroneously typed “洗” by pressing the keys of “e” and “u”.

37.For the second error, he believed that the precedent he used did not have as many beneficiaries as in the new will.  So he applied the copy and paste function of the computer typing software to insert the additional beneficiaries.  By mistake, he left a semi-colon at the end of the last

38.Regarding the third error of numbering clause “3” to “4”, he said there was a clause in the precedent that he did not need. However, after he had deleted the unwanted clause and unbeknown to him, the original clause “4” did not automatically change to “3” as he had used manual numbering to suit his typing of indentations.  He said these were typographical and clerical errors.

39.From his memory and from his comparison of the new will with the copy new will in the file Yaddy Cheung & Co., he confirmed that the new will was the one that he had prepared for Madam Sin which reflected her wishes as expressed by her to him on 15 October 2005 before she executed the same.  He also recognised his signatures and the signatures of Ms Luo on the new will and confirmed that it was executed by Madam Sin in his presence and the presence of Ms Luo and Madam Sin was identified by her Hong Kong Identity Card.

40.He also confirmed that he had not dealt with Madam Sin prior to 15 October 2005 and was not acquainted with the plaintiff until she attended Yaddly Cheung & Co in July 2010 for assistance to obtain grant of probate.  He also was not acquainted with any of the beneficiaries named in the 2003 will or the new will.

41.He had only dealt with Madam Sin on the occasion on 15 October 2005.  However, he could tell that Madam Sin could speak fluent and clear Cantonese.  She had no difficulty in communicating with others.  Her instructions to him were clear and she appeared to him to have a clear and sound mind.  She also expressed clearly her wishes for the new will and understood the implications upon making it.

42.Mr Mak’s evidence was comprehensive.  His answers were direct and forthwith.  He was a co-operative witness.  His evidence was unshaken by the cross-examination.  I find him a truthful witness and I accept his evidence.

The evidence of Luo Yanling

43.Ms Luo is still working as an assistant solicitor at Yaddy Cheung & Co.  She started practising as a solicitor since December 2004.  She joined Yaddy Cheung & Co as an assistant solicitor in July 2005. She gave evidence on how she had witnessed the execution of the new will by Madam Sin.

44.On 15 October 2005, she was asked by Mr Mak to witness the execution by Madam Sin of the new will.  She entered the conference room and saw the new will on the table.  Mr Mak introduced her to Madam Sin whom she had not met before.  She verified Madam Sin’s name and identity by checking the name and photo on Madam Sin’s Hong Kong Identity Card.

45.Madam Sin told her of the desire to make the new will.  Madam Sin also showed her the 2003 will and advised her of the desire to make the new will for excluding Madam Sin’s sons Chan To Chung and Chan To Fun from being beneficiaries of Madam Sin’s estate.  But the remaining beneficiaries would receive the same number of shares of the estate in the new will as in the 2003 will. 

46.She confirmed with Madam Sin that the estate would be divided into 14 equal shares.  She also confirmed with Madam Sin the name of each of the beneficiaries and the respective number of shares given to him or her in the new will.  Finally, she confirmed with Madam Sin that the plaintiff would be appointed the sole executrix and trustee of the new will.

47.After these matters were confirmed, she interpreted the contents of the new will to Madam Sin in Cantonese and Madam Sin signified her understanding of the same.  Madam Sin also confirmed to her that the contents of the new will were in accordance with Madam Sin’s intentions. 

48.She then asked Madam Sin to execute the new will which was a document of 3 pages sealed together by sealing wax.  After Madam Sin had executed the new will, Mr Mak and she also signed as witnesses of the execution.  She also signed as the interpreter on the second page of the document.  The three of them then signed at the bottom of the first page and the back sheet one by one.  She can recognise her signatures and the signatures of Mr Mak on the new will which were signed in the presence of Madam Sin.  She also confirmed that Madam Sin had signed at various places of the new will in the presence of her and Mr Mak.

49.After the new will was executed and signed as aforesaid, she left the matter for Mr Mak’s further handling and returned to her room.  She did not know any of the beneficiaries in the 2003 will or the new will and had no personal interest in the disposal of Madam Sin’s estate. 

50.She did not realise the three errors in the new will that I have referred to above at the time of execution.  Regarding the 4th problem on the use of the proper character for Madam Sin’s given name, she realised that the character used in the new will was not the same character as used in Madam Sin’s Hong Kong Identity Card, but she noted that it was only a variant of the same word.  Hence, she did not think it necessary to make a correction.

51.In cross-examination, she further said that Madam Sin was conscious, responsive, capable to understand questions and had clear thinking.

52.Ms Luo was also a straightforward and helpful witness.  Her answers were direct and forthright.  Her evidence was also unshaken in cross-examination.  There was also no inconsistency between her evidence and that of Mr Mak.  I find her a truthful witness and accept her evidence.

The plaintiff’s evidence

53.The plaintiff also gave evidence.  She referred to the 2003 will and the new will.  She also referred to the three errors of the new will but not the fourth one regarding the use of the variant character for Madam Sin’s given name.

54.In cross-examination, she admitted that she and her mother had accompanied Madam Sin in the taxi journey to the office of Yaddy Cheung & Co on 28 April 2003 when Madam Sin went to make the 2003 will. But she denied that her mother had said anything to Madam Sin during that journey which had anything to do with the provision by Madam Sin in the will of anything for her father.

55.She also said that she was working in the Netherlands when Madam Sin made her new will on 15 October 2005 and she was not aware of its making. 

56.After Madam Sin’s death on 21 July 2010, she retrieved the new will from the safe deposit box at the Bank of East Asia to which Madam Sin had access and she did so in accordance with what Madam Sin had told her when Madam Sin was still alive.

57.The scope of the plaintiff’s evidence is a narrow one.  I find her a truthful witness and accept her evidence.

The defendant’s submissions

58.Though the defendant was not allowed to give evidence as he had not filed any defence or witness statement, he did provide the court with written closing submissions in fluent English.  He said in his closing submissions that both the surname and given name of the testator in the new will are different from Madam Sin’s surname and given name in her Hong Kong Identity Card.  He also said that both Mr Mak and Ms Luo had failed to recognise the error of Madam Sin’s given name in Chinese in the new will which was written as “卿” when the correct character should be “卿”. Hence, Mr Mak failed to explain how he had committed this error.  He also criticized Mr Mak and Ms Luo for not having checked diligently Madam Sin’s Chinese name in her Hong Kong Identity Card against that in the new will so that the new will cannot now be verified.  He also referred to the absence of the number of the Hong Kong Identity card from the new will (which was present in the 2003 will).  He submitted that the absence of the Hong Kong Identity Card number rendered the new will invalid.

59.He also queried why the papers in these proceedings had not been served on Madam Sin’s eldest daughter Madam Chan Oi Wan.  But I note that Madam Chan Oi Wan is not a beneficiary in either the 2003 will or the new will.

60.He also submitted that since clause 2 did not end with a full-stop at sub-clause 2(iii)(f), there might be further provisions dealing with Madam Sin’s other properties like money in bank, real property or investments.

61.In addition, he also raised some other trivial points like typo errors as to dates of filing of affirmations and the plaintiff only called herself the executor in her affirmation instead of the sole executor as stated in the new will.

Analyses and findings

62.I have accepted the evidence of Mr Mak and Ms Luo.  I therefore find that the testator of the new will is indeed Madam Sin as named in and identified by the Hong Kong Identity Card, copies of which were kept in the file of Yaddy Cheung & Co and exhibited by Mr Mak and the plaintiff in their affirmations.  I make this finding despite the Chinese surname is written as “洗” and the Chinese given name as “卿” in the new will instead of the surname “冼” and given name “卿” as in the Hong Kong Identity Card and that the Hong Kong Identity Card number is absent from the new will. 

63.I also note the similarity of the Chinese signatures of the testator in the 2003 will and the new will and I find that they are signatures signed by the same hand.

64.Since I have accepted the evidence of the plaintiff, I also find that the new will was retrieved by her from the safe deposit box in accordance with what Madam Sin had told her when Madam Sin was still alive. 

65.These findings provide further support to my finding that the new will had indeed been made by Madam Sin as identified by the Hong Kong Identity Card.

66.Regarding the use of the semi-colon at the end of the sub-clause 2(iii)(f) of the new will and the defendant’s suggestion that there may be more provision after sub-clause 2(iii)(f), I find that the use of the semi-colon is a mistake and a full-stop should be there.  The first reason is that there are 6 beneficiaries named in the sub-clause 2(iii) as shown above.  The shares of the residuary estate given to them add up to 14 shares and that does tally with the number of shares stated at the beginning of that sub-clause. 

67.Secondly, there is the word “and” after the semi-colon at the end of sub-clause 2(iii)(e).  That indicates that the sub-clause 2(iii)(f) to follow should be the concluding part of sub-clause 2(iii).

68.Thirdly, I accept that the new will has only 3 pages including the back-sheet and the copy kept in the file of Yaddy Cheung & Co is a true copy of it.  There is on the second page of the new will a new clause numbered “4” but no more sub-clause of clause 2.  Hence, I find that there is no more provision to clause 2 after sub-clause 2(iii)(f) and there should be a full stop at the end of this sub-clause.

69.In line with this finding, I also find that there is no missing clause 3 from the new will and the numbering of clause 4 at the top of the second page should be numbered clause 3.

Decision and order

70.In line with these findings, I declare that the new will dated 15 October 2005 which consists of three pages including the back-sheet and as exhibited by the plaintiff in “CWY-2” in her affirmation filed on 8 August 2012 is valid and was validly executed by Madam Sin Hing on 15 October 2005.

71.I order the ratification of the Chinese characters “洗卿” in the new will to “冼卿” as shown in Madam Sin’s Hong Kong Identity Card.  I also order the ratification of the punctuation at the end of sub-clause 2(iii)(f) of the new will by replacing the “;” with a “.” and that the clause number at the top of the next page be changed from “4” to “3”.  I further order the pronouncement of the new will in solemn form and that grant of probate to the estate of Madam Sin be made to the plaintiff.

72.Finally, I make a costs order nisi that the defendant do pay the plaintiff the costs of this action and all costs reserved herein.

Mr Edward M H Chan, instructed by Lee & Chow, for the Plaintiff

The Defendant appeared in person