Yeung Yuen King v. Kong Wai Ha and Others
Read the full judgment text of HCAP 19/2010 on BabelCite. This High Court CFI judgment was delivered on 13 March 2014.
1. The plaintiff (“ P ”) is the lawful widow of the deceased (“ Deceased ”) in his 2 nd marriage, and she is now seeking a declaration that what was handwritten by the Deceased on two pages in a diary embodied his testamentary intentions and/or constituted his last and valid will, and as written therein, she is the sole beneficiary of the estate of the Deceased.
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HCAP 19/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 19 OF 2010 ____________
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___________________ J U D G M E N T ___________________ 1.The plaintiff (“P”) is the lawful widow of the deceased (“Deceased”) in his 2nd marriage, and she is now seeking a declaration that what was handwritten by the Deceased on two pages in a diary embodied his testamentary intentions and/or constituted his last and valid will, and as written therein, she is the sole beneficiary of the estate of the Deceased. 2.The three defendants D1, D2, and D3 are respectively three adult daughters of the Deceased born out of his 1st marriage. D2 was served by way of substituted service by advertising of the notice of proceedings in a newspaper. She had not appeared at all nor had she filed any defence or any other documents in these proceedings. She did not turn up at the trial. 3.D1 and D3 were represented by the same firm solicitors and same Counsel, Mr Koo. D1 and D3 had each filed a defence and counterclaim. 4.D1 and D3 had disputed what was written in the diary by the Deceased constituted a valid will and it was their case that the Deceased died intestate, and that in any event, the Deceased’s minor son born out of his marriage with P should have interest in the Deceased’s estate. D1 had sought an order, among other things, that the letters of administration of the estate should be granted to her and P, and/or someone whom the court would deem fit, as co-administrators due to there being minority interest. D3, on the other hand, sought an order that the letters of administration of the estate should be granted to her as well as D1, and P and/or someone whom the court would deem fit. Apart from this slight divergence, there seemed to be no conflict of interest between D1 and D3. 5.In any event, although D3 did file a defence and counterclaim and an affirmation of testamentary script and had also provided a witness statement, she failed to turn up during the trial to be cross-examined. Mr Koo agreed that D3’s witness statement should not be taken into account. Background 6.The Deceased was born in Hong Kong. He came from a family of 5 children. He had a brother and 3 sisters. His father (“Kong”) is now about 89 years of age. Kong used to grow flowers in a nursery/farm on Tai Mo Shan, and the family used to live in two wooden huts there. 7.The Deceased and Madam Ng Lai Ping (“Ng”) married on 30 January 1973. As result of this marriage,
8.At the time of the marriage, the Deceased was a public light bus (“PLB”) driver and had a PLB licence and a PLB registered in his name (“GC 1747”). 9.P was born in 1974 in Huidong in Guangdong Province and she was educated to about Form 3, and after her studies, she worked in the office of a factory, and in about 1994, moved to work in a factory in Dapeng in Shenzhen. Her parents had a farm in Huidong, and had remained living there. 10.In about 1989, the Deceased switched to become a truck driver, commuting between Hong Kong and Mainland China. The truck was registered in his name (“KY 2292”). After he started working as a truck driver, he then rented the PLB GC1747 out to other drivers, and at the time, it was Kong who would help his son to collect the monthly rent. 11.P said she first met the Deceased at about end of 1993 in Dapeng when he was delivering goods to the office where she was working, but it was only in about December 1995 that they started to have a relationship. P was then 21 years old, and the Deceased was about 48 years old. At that time, the Deceased had rented a flat in Dapeng where he would sometimes stay overnight. P said the Deceased told her he was married, but he had separated from Ng who had moved out about one month after giving birth to D3. 12.In 1995, the Deceased issued formal divorce proceedings against Ng under FCDJ 8055 of 1995. The divorce appeared to be an amicable one. The decree nisi was made absolute on 3 April 1996 and following the divorce, a property in Tuen Mun purchased under the Home Ownership Scheme by the Deceased (“HOS”) was assigned by him to Ng as part of the divorce settlement. 13.P became pregnant in early 1996. On 4 July 1996, the Deceased and P were married at the Yuen Long Marriage Registry. P said she met the Deceased’s parents for the first time in about May 1996 when she came to Hong Kong, and she was then on a tourist visa. 14.After marriage, P lived with the Deceased in one of the wooden huts on Tai Mo Shan. Kong and his wife had by then been allocated a public housing unit at Ha Kwai House in Kwai Chung Estate, but during the day time, he would still return to Tai Mo Shan to the farm to attend to the flowers which he would sell in the flower market. At night, Kong would sometimes stay overnight on Tai Mo Shan, or sometimes return to the Ha Kwai House to be with his wife, since she was still alive at that time. 15.P said that the Deceased had told her that D1 married at the age of 18 and after marriage, she left home and seldom visited her father. P also said that by the time of her marriage to the Deceased, D2 and D3 had also moved out. 16.It was D1’s case that at the time of the divorce, D2 and D3, who were then 21 and 18 respectively, had remained living with their father, and it was only several months after the divorce that D2 moved out, and later in about 2000 P had forced D3 to leave home and it was only thereafter that D3 no longer lived with the Deceased and P. 17.Anyway, about 5 months after P’s marriage to the Deceased, on 15 November 1996, she gave birth to a son who is now 17 (“Son”). 18.According to P, she stopped working after marriage and became a full time housewife to take care of the Son and her parents-in-law. As she had at that time not yet obtained a resident visa in Hong Kong, she and the Deceased were dividing their time between Hong Kong and Dapeng, until the Son reached schooling age. By then, it appeared that the Deceased had also successfully been allocated a public housing unit near where his parents were living. 19.On 30 August 2000, the Deceased’s mother passed away. 20.On 21 December 2001, with the financial assistance of Kong, P and the Deceased bought a property at Skyline Plaza in Tsuen Wan (“Skyline Plaza Property”) as joint tenants at a consideration of HK$2,350,000. Thereafter, Kong moved into Skyline Plaza Property to live with P, the Deceased and the Son. 21.In 2003, with the consent of both the Deceased and Kong, P took up the duty of managing the Deceased’s daily affairs, including managing the PLB GC1747 and collecting rental every month. 22.In March 2003, the Deceased decided to cancel the licence for GC 1747 and switched from “red” routes to “green” routes and he then bought a new PLB for this purpose(“KY 7649”). It was P’s case that Kong had contributed HK$200,000 for the down payment for KY 7647. 23.It would appear that the Deceased was in Dapeng overnight from 4 April 2003 to 5 April 2003, and it was during that time that he wrote in a “Management Diary 1996” (“Diary”)[1] in Chinese across the 144th and the 145th pages thereof, and had also signed his name on the 144th page. It was P’s case that the 144th and the 145th pages together formed the Deceased’s last will and testament (“Document”)[2]. 24.About a week after 5 April 2003, P said the Deceased showed her the Document and the Diary and told her it contained his will, and since then the Diary had been kept safely by her in a drawer inside the bedroom at home. 25.The Deceased suffered a stroke on about 22 June 2006. After the stroke, he was unable to work as the right half of his body was paralysed, and he was not able to speak as clearly as before. According to P, the Deceased later employed a driver for a short while to drive the truck KY 2292. 26.Further, according to P, as a result of D1 kept asking the Deceased to give her money, it was arranged that P would pay D1 HK$50,000 cash and a cheque in the sum of HK$50,000, and that the Deceased had told D1 that the total amount of HK$100,000 would be the last payment or subsidy from the Deceased to her and thereafter, he would not give her any further sums. 27.Later that year, on 30 November 2006, the Deceased and P decided to buy another property in Tsuen Wan (“Harmony Garden Property”) at a consideration of HK$2,350,000, as joint tenants to live in. 28.In January or February 2007, a friend of the Deceased, Mr Law Chung Pak (“Law”), visited him at the Harmony Garden Property, and Law’s evidence was that on that day, the Deceased had told him that he would leave everything to P after his death. 29.The Skyline Plaza Property was later sold on 29 May 2007 for HK$2,870,000. Later that year, on 12 September 2007, KY 2292 was also sold, and sometime in 2008, the Deceased’s bank account at Dao Heng Bank was closed. 30.In June 2008, the Deceased appeared to have suffered a 2nd stroke. He was first sent to the hospital and later a convalescent home. He passed away on 15 November 2008. 31.P said the funeral took place on 5 December 2008, and the day after, D1 called her and asked her to go downstairs as she had something to discuss. P said she had told D1 on that day, ie 6 December 2008, that the Deceased had left a will. This was denied by D1 who said she only knew of the Document and the Diary later. 32.Anyway, after the Deceased’s death, P applied for probate under HCAG 2444/2009, but the application was subsequently opposed by a caveat lodged by D1’s solicitors under HCCA 1648/2009. In the Schedule of Assets filed under HCAG 2444/2009 on 16 March 2009, at date of death, the Deceased had the following assets and liabilities:
33.As the shares seemed to be less than HK$100,000 at the Deceased’s death, his major asset would be the PLB KY 7649. 34.Eventually, on 26 November 2010, P took out the present action. 35.P informed the court that in 2012, KY 7649 had already been auctioned off by the mortgagee Hang Seng Bank as P could no longer afford to repay the monthly mortgage payments. The Diary 36.The Diary is a weekly planner and it contained 146 pages, counting both sides. 37.The 1st page of the Diary was headed “Three Year Calendar” which contained the calendars for 1995, 1996, and 1997[3]. There were 13 lines of handwritings in Chinese written in either red, black, or blue ball pen over this page. The 2nd page of the Diary contained “Metric Conversion Tables”, and there were 3 lines of Chinese handwritings in red ball pen[4]. These writings appeared to be record of some expenses relating to GC 1747 on 18 March 2003, and there was also reference to the new PLB KY 7649. 38.After several pages of various printed information, there were pages for the 1996 “Monthly Planner”. On the page headed “1996 Planner September”[5], there were Chinese handwritings in red of the 12 Chinese zodiac animals. Then on the 1st page for “Name-Address-Telephone”[6], there were several lines of English words written in pencil, which appeared to be notes made by someone who was trying to learn and remember some English words and phrases. 39.The last few pages of the Diary contained 9 pages headed “Notes”. There were Chinese writings on the full page of the 143rd page[7]. As mentioned earlier, the Document was on the 144th and 145th pages of the Diary. 40.On the inner back cover, there was writing of what seemed to be “going to 1B”. 41.There was no dispute that the Chinese handwritings on the 143rd page and on the Document were those of the Deceased. The expression “love 妻”, meaning “love wife”, appeared on the 143rd page and on the Document, and there was no dispute that this expression referred to P, who was at that time his only lawful wife. 42.The Document is set out hereunder in its entirety and original wording:
43.As can be seen, there were 3 sections of handwritings on the Document. The 1st section appeared to be written on 4 April 2003 in Hong Kong (“1st Section”). Briefly, the Deceased wrote in this section about a casual conversation with P that night, when she told him that when she went to pray to the gods at the Guanyin temple earlier that year she was told by a fortune teller who told her that she would have a funeral that year. The Deceased wrote he was shocked and did not know how to pacify his love wife. 44.Then the second section was dated 5 April 2003 (“2nd Section”). Briefly, the Deceased wrote in this section that day was the Ching Ming Festival, but he still had to work as he was not able to finish his orders the day before, and on his way to the Mainland, he suddenly remembered what P told him the night before, and that he had a feeling of bad fortune. He had written that he hoped there would not be anything happening to him and his family, but as who could tell, and that as there were some matters he still had not carried out, he had better write it down, so that P had the right to take over everything he had and that the others could not object. 45.Then in the following section (“3rd Section”), the Deceased recorded that he was writing between 8 pm to 12 midnight on 5 April 2003 before he went to sleep. In this 3rd Section, he appeared to be listing out his assets. He wrote that in March 2003 he had cancelled the “red route” licence for GC 1747 and bought another PLB KY 7649 and switched from “red” route to “green” route, the Skyline Plaza Property of which the purchase price was HK$2.35m, the PLB was worth $4.3m, the truck KY 2292 $500,000, and the Hong Kong dollar cash in the bank accounts at Hang Seng and Daoheng, all to be taken over by P, apart from his father Kong and the Son having the right to object, no one else had such right. The Legal Principles 46.Section 5 (1) of the Wills Ordinance, Cap 30 (“Ordinance”) sets out the formalities that are required for the proper execution of a will and then section 5(2) states as follows:-
47.It has also been stated in the Halsbury’s Laws of Hong Kong as follows:
48.Mr Koo had referred this court to the case of Re Smith (1869) LR 1 P&D 717. In that case, what the testator had tried to do was he had endeavoured to leave it to his wife to say whether or not the 2nd codicil should be operative or not. He had declared the codicil to be operative or not according to a certain event, namely his wife’s determination. Lord Penzance stated:
49.With the above principles in mind, I turn to the present case. The Evidence 50.P had called 5 witnesses, apart from herself, to give evidence on her behalf. They were the Deceased’s younger sister KSY, his younger brother KCL, his father Kong, and two of deceased’s friends LCP and FPT. P had filed 2 affirmations, one of which was of testamentary script, and the others each filed one. The affirmations were directed to stand as witness statements.[10] 51.All the witnesses attended trial to give oral evidence and were cross examined. 52.D1 and D3 had each filed an affirmation of testamentary script and a witness statement. As mentioned earlier, only D1 attended the trial to give oral evidence and was cross examined. Demeanour of Witnesses 53.Mr Koo had challenged P’s credibility and submitted that she appeared to be evasive and defensive. P was cross examined over the major part of the 1st day of trial. I have observed her during cross examination. She did not give the court any impression of being a sophisticated or scheming woman. Although there were occasions she failed to answer give direct answers, generally speaking, she was spontaneous and I find her a credible witness. 54.The Deceased’s family members clearly supported P. I find them all reliable witnesses and I accept their evidence. There was also no reason to doubt what LCP and FPT had said and again I accept their evidence. 55.As for D1, I find her vague and somewhat inconsistent at times, and I do not find her a reliable witness. The Factual Disputes 56.There were a number of factual issues raised by D1 which were not really relevant but Mr Koo submitted they were raised in relation to P’s credibility. I will deal with them hereafter. Whether the Deceased had wanted a son 57.It was D1’s case that the Deceased was not happy with Ng since Ng gave birth to 3 daughters and also they had arguments over the Deceased’s extra marital relationships in Mainland China. In 1996, the Deceased used the excuse that Ng was already over 40 and would not be able to bear him a son to ask for a divorce, and that Ng reluctantly agreed. 58.Mr Koo had pointed out to P that the Deceased was about 27 years older than her when they started their relationship. Mr Koo had also cross examined P on whether she knew that the Deceased had wanted a son, and whether P knew that she was pregnant with a boy when she married the Deceased. 59.It was P’s case that there was no pressure by the Deceased or his parents on her to bear a child or to produce a son, and that no one knew that when she was pregnant the baby would be a boy. She said she did go for a scan at a private hospital, but was told by the doctor that the baby had turned round and the doctor was not able to see from the scan report whether the baby was going to be a boy or a girl. 60.The Deceased’s sister KSY, who was quite close to him, had given evidence to say that she did not hear the Deceased mentioning that he had wanted a son. The Deceased’s brother KCL was married with two daughters, but when asked whether KCL himself had wanted a son, he said he had no view on this matter, and although Kong had mentioned wanting a grandson, there was no pressure from Kong for KCL to have a son. Kong was also cross examined on whether he was very happy when P gave birth to the Son, Kong had replied not really, and that it would be fine if P was unable to do so. 61.So far as the separation from Ng was concerned, the evidence from the Deceased’s sister KSY supported what P said was told to her by the Deceased, that it was Ng who moved out of the wooden hut on Tai Mo Shan shortly after giving birth to D3. In fact, KSY said she had accompanied the Deceased to Ng’s mother’s home where Ng had moved to discuss with Ng her marital problems. Kong also supported P’s evidence and said it was Ng who had left the Deceased. 62.The reason for the divorce between Ng and the Deceased is not really important or relevant since I find that the relationship between Ng and the Deceased had broken down many years ago and they had separated by early 1980s, long before P had met the Deceased. The Deceased only took steps in 1995 to formalize the divorce. D1 had said that the reason for the divorce was P’s pregnancy but it seemed that the Deceased had commenced divorce proceedings in 1995 which should be before P’s pregnancy as the Son was born in November 1996. 63.I accept that P was much younger than the Deceased when they met, but even if the Deceased had indeed wanted a son, there could be no guarantee in such a matter. I do not find P a scheming woman, and I find no sufficient evidence that the Deceased had particularly wanted a son or married P only because she was willing to bear another child for him. Relationship between the Deceased and P 64.D1 had alleged that the Deceased had moaned to her that P was controlling his assets and was often requesting him to work more to earn money and to transfer all his properties and assets to P or to their joint names, and as the Son was still young and Kong was elderly, to keep the harmony in the family, he would comply with P’s requests. D1’s allegations seemed to suggest that the Deceased was not happy with P as she was controlling and demanding. 65.The Deceased’s brother KCL had given evidence that the Deceased was very happy with P and that he had given KCL good comments on P. 66.Then there was the Deceased’s friend LCP who gave evidence on behalf of P. LCP had met the Deceased in 1997 and was a very good friend of his. LCP said he had visited the Deceased in January/February 2007 after the Deceased had his 1st stroke, and he noticed that P was busy doing house work and looking after the Deceased and that when P was in the kitchen, the Deceased had told LCP that all his assets would be given to P. LCP had met P when she was working in Dapeng, but did not know she was married to the Deceased, until he met her again during the visit in 2007. 67.One of the drivers who rented the new PLB KY 7649 from the Deceased, FPT, also gave evidence for P, and he confirmed that he signed the PLB rental agreement dated 1 September 2003 with the Deceased, and that the Deceased was with P at that time, and thereafter, it was P who was helping the Deceased to collect the rental on the PLB and paying FPT. 68.The evidence from KSY, KCL and Kong all showed that they were a close family with the Deceased and had a good relationship with P. Even though it would seem that Kong was becoming difficult due to his advanced age, he had all along been living with P, the Deceased and the Son since they all moved to Skyline Plaza Property and P was looking after him as well. 69.The Deceased and P were married for 12 years, which was not a short marriage. He had referred to P as his “love wife” on the 143rd and the Document. The family members were all willing to support P in her present application. I am satisfied that P had a close and happy relationship with the Deceased before his death and she was caring for him and also Kong. I reject D1’ evidence on her suggestion to the contrary, if any. The relationship between the Deceased and D2, D3 70.D1 said the Deceased had told her that he realized that his remarriage had hurt the feelings of Ng and his daughters and that he felt sad when D2 left home suddenly in 1996 and lost all contact with the family. Also the Deceased had told her that there were frequent quarrels between P and D3, leading to D3 also leaving home in about 2000. 71.Although D1 seemed to portray that she had a good relationship with her sisters, she admitted that after her marriage, she had had no contact with D2. As for D3, D1 had pleaded in her defence and counterclaim that D3 was forced by P to move out from her father’s home in 2000. However, when D1 was questioned on this during the trial, D1’s answer was that as she was not in Hong Kong, she did not know when D3 moved out. P had produced a notice dated 23 October 1996 sent by the Tai Tam Gap Correctional Institution[11] to the Deceased that D3 had been sent to the Institution for taking drugs. Thus, by then, D3 would not be living at home. There was no sufficient evidence that she had returned home after being released, and D3 had chosen not to appear to give evidence. From the evidence of the family members, it would appear that both D2 and D3 had drug problems. 72.In any event, the evidence of KSY, KCL and Kong all showed that the daughters’ relationship with them was not close. Kong said he had not seen his granddaughters for a long time and that he did not recall even their names. Kong had also said the Deceased very seldom mentioned them to him. 73.I accept their evidence and find that the relationship between the two younger daughters D2, D3 and the Deceased was not close at all. In fact, D2 had disappeared for a long time. The Deceased’s relationship with D1 and Ng 74.So far as D1 herself was concerned, the picture she tried to portray was that she had a good relationship with her father and that her parents had maintained a friendly relationship after the divorce. 75.It was D1’s case that without P’s knowledge, the Deceased had in fact been secretly meeting Ng and D1, and sometimes even D3. 76.It was also D1’s case that Ng did not blame the Deceased over the divorce and that the Deceased would give money to Ng from time to time, for her living expenses and for her to pay her mortgage payments, and that the Deceased would have meals with D1 and Ng. 77.D1 had said in her witness statement that she seldom had contact with the Deceased in the early years after the divorce. During the trial, she, however, claimed that she had met with the Deceased, on average once a month after her marriage in 1990 and before she emigrated to Canada in 1993. 78.D1 had also said that between 1993 and 2004, she would meet with the Deceased whenever she returned from Canada, but from her evidence that she seemed to be returning to Hong Kong only once every 2 or 3 years. 79.There were no photographs or any other evidence to support what D1 had said about any meeting with the Deceased between 1990 and 2004. When asked, D1 said she had left some photographs during that period in Canada. 80.D1 then said after she returned from Canada in 2004 she began to meet with the Deceased regularly, sometimes 2 or 3 times a month. D1 had produced 10 photographs which were taken of her and/or Madam Ng with the deceased[12]. The 10 photographs were taken on 3 occasions only, 1 August 2004, 22 August 2004 and 30 January 2006 when they were at “yum cha”. 81.The Deceased’s mother, or D1’s paternal grandmother, died in about 2000 and D1 did not attend her funeral. D1 said she was still in Canada at that time. 82.KSY had said that the relationship between the Deceased and D1 was not good and that whenever D1 approached the Deceased, the only purpose was to ask the Deceased for money, and that the Deceased had mentioned this to KSY after he had a stroke. 83.KSY had also said she recalled some 12 years ago her daughter had seen D1 with a baby and when KSY later asked the Deceased whether D1 had given birth to a child, the Deceased had replied that he had no idea as he had had no contact with D1. 84.D1 had given very little information about herself, and it seemed that she had separated/divorced from her husband, and there was no information in relation to her child. There was little information in relation to the Deceased’s contact with D1’s child although D1 had said she had bought her son to see the Deceased. 85.Kong had also said that D1 had little contact with the Deceased. 86.Having considered the evidence, I find that the contact between D1 and the Deceased was really not as frequent as D1 had tried to portray and there was no sufficient evidence that it was a close relationship. 87.Further according to D1, after she returned to Hong Kong, the Deceased would pay Ng maintenance through D1. It was not clear why the Deceased had to pay Ng through D1. It was D1’s case that the Deceased did pay Ng maintenance after the divorce, but as D1 was in Canada for 9 years, this would not have been done through her. When D1 was asked why the Deceased would need to pay Ng through D1 after her return, she explained that this was because Ng was not in good health after 2004. There was, however, no indication from the photographs produced by D1 that Ng was not in good health in August 2004. 88.There was in fact very little information in relation to Ng. According to D1, Ng was a factory worker until about 1998, and Ng now lives in Mui Wo on Lantau Island in a property belonging to her mother. It was not clear as to what happened to the HOS property which the Deceased had transferred to Ng at the time of the divorce. 89.It seemed that at the time of the divorce, there was also a nominal periodical payments order for Ng apart from the transfer of the HOS property to her. If so, there was no legal obligation for the Deceased to pay Ng any substantial amounts after the divorce although it did not seem to be disputed that the Deceased did pay Ng some sums until 2001. D1 said that she had not really asked her mother specifically on the terms of the divorce. 90.Having considered D1’s evidence, I find that there was no sufficient evidence that the Deceased had continued to pay Ng maintenance after 2001, or that any payments received by D1 was in fact for Ng’s benefit. There had been no affirmation from Ng to support what D1 had said. Whether P had obstructed D1 in seeing the Deceased 91.Another allegation D1 had made against P was that she was experiencing difficulties in seeing the Deceased after his 1st stroke. When D1 was asked to explain the difficulties, she then said she was not able to understand what the Deceased was saying on the telephone and it was only after trying many times that D1 eventually communicated with P. It is clear from D1’s own evidence that P was not obstructing D1 from talking to the Deceased at all, and it was only because the Deceased’s own speech difficulties at that time that D1 could not understand what he was saying. What D1 said would seem to indicate that P was in fact assisting her to communicate with the Deceased. 92.D1 had herself said that P had arranged and accompanied the Deceased to go downstairs to meet with her, and it was through P that the Deceased had paid D1 the HK$50,000 on two occasions, the first time on 13 October 2006 and the second time on 27 October 2006. The cheque for the 2nd HK$50,000 was in fact drawn from a joint account of P and the Deceased. D1 herself had also said that when she was speaking to her father, P had walked to one side, and had allowed them to speak to each other, although D1 then said this did not mean that P could not hear what they were saying. 93.D1 had further said that after the 1st stroke and before the Deceased passed away, as he was no longer able to go for “yum cha”, she would see him occasionally in the park, and that it was P who accompanied the Deceased, but P would walk off and let D1 and the Deceased talk . 94.D1 complained when she went to visit the Deceased at the hospital after his 2nd stroke, she was not able to talk to him in private as P’s brothers were there “harassing” her. It was not clear what she meant, since the Deceased was in a public ward. It seemed that she felt she was under supervision. When asked by P’s Counsel, Ms Kung, whether she had asked to be left alone with the Deceased, D1 then said he was already very weak and had lost his senses. 95.Having considered D1’s evidence, I do not find that there was sufficient evidence that P was obstructing D1 in communicating with the Deceased or to meet with the Deceased. I reject D1’s evidence in this regard. Key Issues 96.As submitted by Mr Koo on behalf of D1 and D3, the key issue in the present case is whether P can prove beyond reasonable doubt that the Document embodied the testamentary intentions of the Deceased. 97.The second issue is whether the court should appoint a co-administrator for the estate of the Deceased, as there is minority interest. Whether the Document embodied the testamentary intentions of the Deceased The Document 98.Mr Koo submitted that P’s own evidence showed that the Deceased did not have the necessary testamentary intent. Further, P had said repeatedly in the witness box that the Deceased had told her that only Kong and the Son would have the right to object, and as the Deceased had intended to give Kong and the Son the right to object; there was no testamentary intent of the Deceased. 99.The Diary was of the year 1996, but it seemed that it was unused for several years. There was no challenge that the Document was not written on the dates stated thereon in 2003. It was not clear whether the 12 Chinese Zodiac signs and also the English words were written by the Deceased, as they appeared to be more like written by a child/student. 100.The Deceased also seemed to have “correction fluid” with him, since there was a correction in the date of 4 April 2003 of the 1st Section. The 1st Section seemed to be written at home in Hong Kong. The 2nd Section was dated 5 April 2003, and appeared to be written when the Deceased was staying overnight in Mainland China. He also had “correction fluid” with him, and the 2nd Section was written by two ball pens, one blue and once black. 101.The 3rd Section started off by stating that he had been writing before he went to bed from 2000 hours to 2400 hours during the night of 5 April 2003. It was also clear that the Deceased had written the preceding page, namely the 143rd page, before he went to sleep. 102.The Deceased would have written the 143rd page either shortly before or after he wrote the 2nd section and/or 3rd Section on the Document. On the 143rd page, the Deceased recorded that it was the Ching Ming Festival. He seemed to be writing to his mother, telling her how much he missed her and that he would not be happy the rest of his life as he was not present at the time when his mother whom he loved most passed away. He said he was not happy as he had many ailments and only then he realised that health was important, but there was no use, and he only hoped that he could live several more years with his son and love wife, and therefore he would listen to his love wife in being careful about his health. He also told his mother that his father’s temper had become strange and it was difficult for his love wife. 103.The 3rd Section only consisted of some 4 to 5 lines, and he listed his assets and then he stated that everything would be received by P, and apart from Kong and the Son, no one else could object, and then he signed his name. 104.The 1st Section of the Document and 143rd page would indicate the surrounding circumstances under which the 2nd Section and the 3rd Section were written. In particular, the Deceased had mentioned about a funeral in the family as foretold by a fortune teller, it was also Ching Ming Festival, and he had mentioned his health problems. 105.The Document was carefully, neatly and purposely written by the Deceased, unlike his notes on the 1st few pages of the Diary. The 2nd Section would indicate that he had wanted to write down in advance his intention regarding his assets as no one could tell what would happen in the future. 106.Further, according to P, the Deceased handed to her the Diary in April 2003 and showed her the Document and said it was his will. 107.P admitted that she did not tell Kong at the time when she received the Diary, and it was only after D1 called and asked for the will that she told Kong about the Document in the Diary. P had said that the PLB KY 7649 belonged to Kong and it was up to Kong to decide whom it should go to, and in fact in 2004, the Deceased had suggested to P to change the licence of the PLB to her name as he wanted to gift it to her, but she had said that this should wait until after Kong had passed away since it was Kong who paid for it. 108.It was P’s case that as Kong had paid money for the PLB, he had the right to decide whether all the interest in KY 7649 should go to P. 109.Having considered the 143rd page and the Document, I am satisfied that there can be no reasonable doubt that the intention of the Deceased was to make provisions in relation to his assets in the event of something happening to him, namely death, and that the Document did embody the testamentary intentions of the Deceased. 110.I am of the view that the gift of all assets to P subject to the right of Kong and the Son to object means that this is a conditional gift and this term does not mean that the Deceased had given Kong and the Son a power to revoke his will, and I am of the view that the case of Re Smith can be distinguished. Whetherthe Document was written by the Deceased under P’s undue influence 111.D1 had also alleged that the Document was written by the Deceased under P’s undue influence. It has been said in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 287 that:
112.I am satisfied that on the information before this court, there was no sufficient evidence that the Deceased was under P’s undue influence when he wrote the Document. Whether there was minority interest 113.Although the Son will be 18 later this year, he is still a minor at present. The Deceased had written in the Document that Kong and Son had the right to object to all his assets going to P. In view of this right, there may be minority interest, and in my view, there should be a co-administrator. I have in mind one of the Deceased’s siblings, such as KSY, or KCL, but would direct that further written submissions be made on this matter. Conclusion 114.In view of my findings above, I make the following declaration/orders :
115.Costs of this action be to P and D1’s own costs to be taxed in accordance with legal aid regulations. This is an order nisi, which will be made final after 21 days. 116.Lastly, I would like to thank Counsel for their assistance to this court.
Ms Athena Kung, instructed by Danny Lau & Co, for the Plaintiff Mr Ernest Koo, instructed by Christine M Koo & Ip, for the 1st and 3rd defendants The 2nd defendant was not represented and did not appear [1] E:38-112 [2] E:110 [3] E:41 [4] E:42 [5] E:50 [6] E:52 [7] E:109 [8] Para 425.014, pg 67-68 [9] At pg 719 [10] Para 2, A:67 [11] E:3-6 [12] E:132-141 [13] At para 178, |
Cases cited in this judgment
Further hearings and rulings under HCAP 19/2010