IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 149, 157 AND 182 OF 2011
(ON APPEAL FROM HCAP 7/2010)
||CHOY PO CHUN (蔡寶珍)
||AU CHADWICK (區卓威)
||AU WING LUN (區穎麟)
also known as (區頴麟) and
AU WING LUN WILLIAM
Before: Hon Cheung and Yuen JJA in Court
Dates of Hearing: 14 February 2012
Date of Judgment: 28 February 2012
J U D G M E N T
Hon Cheung JA:
1. Mr. Au Kong Tim (‘the deceased’) died on 7 July 2009 at the age of 93.
2. Au Wing Lun William (‘the defendant’), Au Yuk Lun Anthony (‘Anthony Au’) are his two sons. They are both solicitors. Au Lan Wai, also known as Gloria Au is his daughter.
3. In 1976, the deceased made a will in favour of his two sons. On 19 July 2002 he executed another will (‘the 2002 will’) written in English in which he appointed the plaintiffs as his executors and gave his property to his six grandchildren. The 1st plaintiff is the wife of Anthony Au and the 2nd plaintiff is the son of Anthony Au.
4. The plaintiffs issued the present action seeking, among other things, an order that the court pronounce in solemn form the 2002 will.
5. The defendant contested the case and filed a defence and counterclaim. He claimed that the 2002 will was revoked by another will dated 5 September 2008 (‘the 2008 will’) in which the deceased appointed him and Anthony Au as the executors and gave his property to them and his two grandsons equally. The defendant asked for the 2008 will to be pronounced in solemn form.
6. The plaintiffs had originally in their statement of claim challenged the validity of the 2008 will but that claim was struck out by Master Levy on 1 November 2010.
7. After the plaintiffs filed the reply and defence to counterclaim, (which was followed by the defendant’s reply to defence to counterclaim), the plaintiffs applied for summary judgment of their claim.
8. To J granted the defendant leave to defend conditional upon him paying security for the plaintiffs’ costs initially in the sum of $500,000 and with liberty to apply.
9. Pursuant to leave to appeal granted by a single judge of this Court,
1) the defendant appeals, asking for unconditional leave to defend,
2) the plaintiffs also appeal, asking for summary judgment against the defendant.
Execution of the 2008 will
10. There was no dispute that the 2002 will was properly executed. The dispute is whether the 2002 will was revoked by the subsequent 2008 will.
11. The deceased was a wealthy man. Between March 2007 and May 2009, he was residing at an old age home. The 2008 will was executed by the deceased while he was residing there. The defendant said that the deceased verbally instructed him to prepare the 2008 will. The defendant then gave instructions in writing to Mr. Yeung Wai Chung (‘Mr. Yeung’) a solicitor and Mr. Lau Wah Shun (‘Mr. Lau’), a then trainee solicitor of the firm of Messrs. Tso, Au, Yim & Yeung (‘TAYY’).
12. The 2008 will was prepared in Chinese. The 2008 will was executed in the presence of Mr. Yeung and Mr. Lau. The defendant was also present at the time of execution. The judge referred to a letter dated 8 October 2009 from TAYY exhibited to the defendant’s affirmation dated 17 March 2011 concerning the execution of the 2008 will:
‘ (1) the said Will dated 5th September 2008 was executed by Au Kong Tim, deceased …... on 5th September 2008 in the presence of our partner Mr. Yeung Wai Chung and our trainee solicitor Mr. Lau Wah Shun Edwin.
(2) the content of the said Will had been read over and explained to Au Kong Tim, deceased, by our partner Mr. Yeung Wai Chung and he verbally confirmed to Mr. Yeung of his understanding to the said Will before execution.
(3) Mr. Yeung and Mr. Lau were both satisfied as to the mental capacity of Au Kong Tim, deceased, at the time of his execution of the said Will.
(4) Au Kong Tim, deceased, executed the said Will by signing his surname onto the said Will with the assistance of Mr. Au Wing Lun in the presence of both our Mr. Yeung and Mr. Lau.’
13. The defendant said he assisted the deceased in signing the will by lifting the elbow of the deceased ‘so that he could put his hand on the detachable table to sign the last will’.
14. The plaintiffs’ solicitors had served interrogatories on TAYY on the circumstances of the execution of the 2008 will. TAYY, however, declined to answer them but stated that Mr. Yeung and Mr. Lau were prepared to testify at trial as to the circumstances of the execution of the 2008 will. The defendant stated that despite his request, Mr. Yeung and Mr. Lau had also refused to provide an affirmation on the circumstances of the execution of the 2008 will.
Probate action and summary judgment
15. The plaintiffs seek to propound the 2002 will in solemn form. The distinction between grants of representation in common form and those in solemn form are as follows. A will is proved in ‘common form’ where its validity is not contested or questioned. On the other hand, a will is proved in ‘solemn form’ by the executor, or a person interested under the will, propounding it in a claim to which the persons prejudiced by it have been made parties, and by the court, upon hearing evidence, pronouncing for the validity of the will and ordering the issue of a grant. The difference in effect between a probate which has been granted in common form, and a probate which has been granted in solemn form, is that the former is revocable, and the latter, provided proper notice has been given to all persons interested, is, subject to two exceptions, irrevocable. See: Tristram and Coote’s Probate Practice, 30th edition, paragraph 26.03.
16. Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2)  2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4) but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution, see: paragraph 76/8/1 of the Hong Kong Civil Procedure 2012.
17. Given the nature of a contentious probate action, the court raised with the parties whether Order 14 summary judgment proceedings is applicable to such an action. On the face of it, Order 14 does not exclude its application to a contentious probate action. In Re Lau Siu Wah  1 H.K.C. 364, it was held that Order 14 applies to probate actions. This was followed in Sum Wan Piu Paul v. Lau Siu Hong HCAP 3/2004 and in Lisa Poncet v. Kho Sin Tek Henry (unrep., HCAP 19 of 2003)  H.K.E.C. 446 an action for the grant of letters of administration.
18. To complete the picture, the commentary at paragraph 14/12 of the English Supreme Court Practice 1999 is also relevant. It stated the position prior to the introduction of the new rule for summary judgment in rule 24 of the Civil Procedure Rules:
‘ Formerly O.14 did not apply to probate actions, which were tried in the Probate Divorce and Admiralty Division. Now that such actions are tried in the Chancery Division, there is no longer any reason in principle why summary judgment should not be given in such an action. It will, however, only rarely be appropriate, given that any person whose interest in the estate of a deceased person is prejudiced by a testamentary document may compel the executor or other person seeking to propound it to establish it by the examination of the attesting witnesses.’
19. Tristram and Coote’s at paragraph 38.08 commented that
‘ Summary judgment under CPR Pt 24 is available but seldom likely to be appropriate in a probate claim.’
20. It should be noted that none of the Hong Kong cases I have referred to were concerned with the raising of a counterclaim in the probate action. While I am not prepared to say that the mere existence of a counterclaim will preclude the application of the summary judgment procedure, the court must tread carefully before giving effect to this procedure. Ultimately the question is whether credible triable issues have been raised in a contentious probate action.
Two contentious issues
21. Two contentious issues arose out of the 2008 will. First, whether the will was executed by the deceased. Second, whether the deceased had the mental capacity to execute the will.
Arguable issue on execution
22. The judge held that the defendant had raised an arguable defence on the first issue regarding the execution of the will by the deceased. The judge held that Mr. Yeung and Mr. Lau being non parties to the litigation were under no obligation to answer the interrogatories, although he was critical that the defendant had not filed an...