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Chan Lai Chun v Chan Tin Lam

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date06 November 2000
Year2000
Judgement NumberHCAP3/1997
Subject MatterProbate Action
CourtHigh Court (Hong Kong)
HCAP000003/1997 CHAN LAI CHUN v. CHAN TIN LAM

HCAP000003/1997

HCA12892/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12892 OF 1996

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BETWEEN
CHAN TIN LAM Plaintiff
AND
CHAN LAI CHUN Defendant
AND

HCAP3/1997

PROBATE ACTION NO.3 OF 1997

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IN THE ESTATE OF YU YEE MUI (俞依妹) late of Flat D, 9th Floor, Union Mansion, Nos.33-35, Chatham Road, Tsimshatsui, Kowloon, Hong Kong, widow, deceased

--------------------------

BETWEEN
CHAN LAI CHUN Plaintiff
AND
CHAN TIN LAM Defendant

--------------------------

(Consolidated)

Coram: Deputy High Court Judge Muttrie in Court

Dates of Hearing: 23 - 25 October 2000

Date of Judgment: 6 November 2000

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J U D G M E N T

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1. Madam Yu Yee Mui ("the Deceased") died a widow on 24 January 1991 of stroke and diabetes. Her daughter, Madam Chan Lai Chun, on 23 July 1993, obtained Letters of Administration to the Deceased's estate, on her affirmation that the Deceased had no other lawful children or issue and that she had been unable to find any Will made by the Deceased. The estate consisted of Flat D, 9th Floor, Union Mansion, Chatham Road South, Kowloon ("the Property"), which Madam Chan Lai Chun sold on 7 April 1994 for $2,450,000.

2. On 12 November 1996, Mr Chan Tin Nam ("Tin Nam") commenced action no.12892 of 1996 against Madam Chan Lai Chun ("Lai Chun"). For the sake of clarity, since they have the same surname, I will call them by their given names. In this action, Tin Nam claims to be the son of the Deceased and as such entitled on her intestacy to half of the estate, along with Lai Chun. He therefore claims half of the proceeds of sale of the Property. Lai Chun's defence to this claim is that Tin Nam was not the son of the Deceased at all but the son of a family friend, whom the family took in when he came to Hong Kong from Fuzhou as a child and is therefore not entitled to a share of the estate on intestacy.

3. On 11 April 1997, Lai Chun commenced HCAP3/1997 in which she seeks revocation of the grant of Letters of Administration and to propound the Deceased's Will dated 10 July 1990, which she says was found after the grant, and indeed after the commencement of Tin Nam's action. Tin Nam avers that the Will was not executed by the Deceased; or that the Will was not properly explained to her so that she did not appreciate that it had the effect of disinheriting him, her son; or that she did not have the necessary testamentary capacity; or that the Will was executed without her knowledge and approval.

4. The two actions were consolidated.

5. The major issue of fact in this case is whether Tin Nam was the lawful and natural son of the Deceased. If he is, then in the absence of a valid will, he is entitled to a half share on the Deceased's intestacy. The Will purports to disinherit him, so the relationship has to be taken into account in considering whether or not it is valid. If, however, he is not the natural son, any criticism of the Will that it is irrational, in that it disinherits a natural son, does not apply. Indeed, if he is not the natural son, then even if the Will is invalid, this will not avail him because he has no rights on intestacy.

6. It is not disputed that the Deceased was the wife of Chan Tso Hang, who died intestate on 1 June 1990. The Property was held in their joint names.

7. The couple came to Hong Kong from Fuzhou Province in the early 1950s. Lai Chun, who is their only daughter, joined them in about 1953 or 1954, as a girl of about nine years of age. Tin Nam came to Hong Kong about a year later as a boy of about five years of age. He lived with the family at various locations in Kowloon for about ten years, during which time Chan Tso Hang taught him the trade of ivory carving, and later stone carving.

8. In February 1961, Chan Tso Hang took the young Tin Nam to the Immigration Department to obtain a juvenile identity card for him, and for this purpose made a declaration that he was the boy's father.

9. Tin Nam left the family home in 1966. He says that he then lived independently and worked in Hong Kong. He was not then married. He lived on his own because he wanted to be independent. He got married in around 1968/1969 in the mainland. His parents sent him money when he got married but they did not attend.

10. Within the family, Tin Nam was known to his cousins by the usual titles which would be applied in Cantonese to a male elder cousin, such as "tong dai lo". At the funerals of Chan Tso Hang and the Deceased, Tin Nam acted as the "filial son" and performed the rites of carrying the mourning banner and "buying water".

11. After the sale of the Property, Lai Chun gave Tin Nam a cheque for $200,000 on 23 May 1994. This came from the proceeds of the sale. According to her, it was a gift in recognition of his having performed the funeral rites, which she could not as a woman perform. According to him, she gave him this money as his entitlement from the estate of the Deceased, i.e. his mother. She did not tell him that this money was his entitlement from the estate. He never asked if the Deceased had left a Will, nor did she tell him that the Deceased had not. Tin Nam for his part says that Lai Chun told him that this was his share of the estate. He said that it was not the correct figure but she said that it was what he could get. He asked her to let him see the Will but she refused.

12. Lai Chun's evidence is that after Tin Nam moved out, the family only saw him rarely. They saw him during some but not all festivals. She married in 1965 and thereafter saw her parents often. She emigrated to Canada in 1985 but after that came back to see them every year. After the Will was made, she took the Deceased to stay with her at her home in Canada from 12 September 1990 to 2 January 1991.

13. Tin Nam by contrast said that he visited his mother often when she was alive, both before and after she went to Canada.

14. I asked Tin Nam if the Deceased had ever said anything about the parents' flat. He said that his mother had told him that if the flat could be sold successfully, half of the proceeds would go to him and his sister and she would keep the other half for her own spending until she died. His mother had told him that his sister would give him his share; he had trusted Lai Chun to do that.

15. In cross-examination, he said that this conversation had taken place after his father had died, at his mother's home. No one else was there. He said that she had repeated this a couple of times when he visited her in the nursing home. At that time, she had said that she would get a flat in Yuen Long where he could live with her, and look after her. She had asked him to give up his job to take care of her. Again, no one else was there.

16. With regard to the condition of the Deceased towards the end of her life, Tin Nam said that the Deceased was, about the time she went to Canada, "rather stupefied because of her age". In fact, he had not known of the trip to Canada; neither the Deceased nor Lai Chun had told him of it.

17. The evidence of the Deceased's state of health from the other witnesses is quite different. Lai Chun herself, her daughters Gigi, Grace and Genia, Lo Kwok Sun (who is Grace's husband), and the cousin Chan Kwok Nam, all say that they saw the old lady in Canada in late 1990. They all say that while she had had a stroke and needed to walk with a stick because of it, there was nothing wrong with her mental state.

18. A cousin, Chan Shui Lam, also gave evidence of his dealings with the Deceased concerning money entrusted to him for her benefit by Chan Tso Hang before his death and his purchase from her of some coral left by Chan Tso Hang. These dealings took place just before the Deceased went to Canada in September 1990. Chan Sui Lam found nothing wrong with the Deceased's mental state at that time.

19. Dr Luk Ching Hon had been the Deceased's attending physician since 1988. He saw her every month before she went to Canada, including on the day she made the Will, though he did not know she was to make it. He said that she had had a stroke; it was not a severe one. Physically, she could walk with a stick and climb onto his weighing scale. As far as he was concerned, she was mentally sound.

20. The evidence about the making of the Will itself comes from Lai Chun and Mr Lee Kwok Wah ("Mr Lee"), who was a clerk to the solicitor who made it, Mr Lai Kwok Kwong ("Mr Lai"). The latter has written a letter stating that it complied with the Wills Ordinance, but it has proved impossible to find him and bring him to give evidence. There was a complaint to the ICAC about this matter; he was under investigation at the time of his letter dated 12 February 1999; he stated then that he was willing to give evidence but he has since ceased to practice and cannot be found.

21. Briefly, Lai Chun's evidence is that she took the Deceased to see the solicitor on 7 September 1990 about her father's estate. Mr Lai suggested that the Deceased make a will. The Deceased agreed and instructed him to prepare it. He asked the Deceased if she had other children, and she said that she had none; she wanted to give all her estate to her daughter. Mr Lai asked them to come back on 10 September, which they did. Mr Lai got the documents and brought in a witness. He started to talk about the Will and said "Now that you have given all your estate to your daughter; do you understand?". The Deceased said that she understood. He asked her to sign and he asked the other person to sign. The Deceased said that she was old and could not sign,...

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