Yeung Yuen King v. Kong Wai Ha and Others

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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BETWEEN

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RULING ON COSTS

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1.On 13 March 2014, this court handed down a judgment declaring, among other things, 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, P was the sole beneficiary of the estate of the Deceased (“Main Judgment”).

2.I shall adopt the same legend in this Ruling as in the Main Judgment.

3.In the Main Judgment, I made an order nisi that costs of this action be to P and D1’s own costs to be taxed in accordance with legal aid regulations (“Order Nisi”).    

4.As mentioned in the Main Judgment, D1 and D3 were represented by the same firm of solicitors and same Counsel, Mr Koo, but D3 did not turn up during the trial to give oral evidence. 

5.By a summons dated 2 April 2014, D1 and D3 applied to vary the Order Nisi as follows:

(a) There be no order as to costs;

(b) Alternatively, P’s costs be paid out of the estate of the Deceased;

(c) D1’s and D3’s own costs be taxed in accordance with Legal Aid Regulations.

6.Section 52 A (1) of the High Court Ordinance, Cap 4, provides that:

“Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.”

7.Order 62 rule 6 of the Rules of the High Court, Cap 4A, has further set out as follows:

“(1) Notwithstanding anything in this Order or in section 52A of the Ordinance-

(c) unless the Court is of opinion that there was no reasonable ground for opposing the will, no order shall be made for the costs of the other side to be paid by the party opposing a will in a probate action who has given notice with his defence to the party setting up the will that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.

(2) Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the Court may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably or, in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.”

8.As accepted by both Counsel, this court has a discretion on costs as between the parties in contested probate proceedings, as in other areas of litigation.

9.Mr Koo also referred this court to Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCASR 800 where it could be seen that notwithstanding the cardinal rule of “costs follow the event” there are two exceptions to this rule in a litigation to oppose to a will, namely:

(a)   Where the litigation is caused by the conduct of the testator or residual beneficiary, the costs should be paid out of the estate;

(b)   Where circumstances lead reasonably to an investigation of the will’s validity, there should be no order as to costs.

10.As mentioned in the Main Judgment, the case of D1 and D3 was that what was written in the diary by the Deceased did not constitute a valid will and it was their case that the Deceased died intestate.

11.I have made a number of findings of fact against D1 and further said she was evasive and not a reliable witness.  These findings had again been drawn to my attention by P’s Counsel, Ms Kung.  There was also an allegation of undue inference on the part of P, which I found no sufficient evidence to support.  The time spent on this issue was relatively short.

12.Notwithstanding such findings against D1, as submitted by Mr Koo, the Document was not a will made in compliance with section 5(1) of the Wills Ordinance, Cap 30.  As said in the Main Judgment, the Document was written on an ‘unused’ diary, and I accept this was not a usual way for making a will, and further the Deceased’ signature was made in the absence of any witness.

13.Having re- considered all the circumstance, I am satisfied that it was not unreasonable for D1 and D3 to oppose the Document, and in my view, the litigation was caused mainly by the conduct of the Deceased who decided to make a will in the manner he did.   I will thus vary the Order Nisi and to order P’s costs be paid out of the estate of the Deceased, and D1’s and D3’s own costs be taxed in accordance with Legal Aid Regulations.

Ms Athena Kung, instructed by Danny Lau & Co, for the Plaintiff

Mr Ernest Koo, instructed by Christine M Koo & Ip, for the 1^st and 3^rd defendants

The 2^nd defendant was not represented and did not appear