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Lam Wai Wing v Lam Tak Yuen

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 April 2021
Neutral Citation[2021] HKCFI 903
Year2021
Judgement NumberHCAP21/2020
Subject MatterProbate Action
CourtCourt of First Instance (Hong Kong)
HCAP21/2020 LAM WAI WING v. LAM TAK YUEN

HCAP 21/2020

[2021] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 21 OF 2020

_______________________

IN THE ESTATE OF CHOW FOOK LIN (周福連) of Flat 4C, Block 20, Phase I, Parc Versailles, Tai Po, New Territories, Hong Kong, widow, deceased (“the Deceased”)

and

IN THE MATTER OF sections 33 and 56 of the Probate & Administration Ordinance (Cap. 10)

and

IN THE MATTER OF Order 85 rule 2 of the Rules of the High Court (Cap. 4A)

_______________________

BETWEEN

LAM WAI WING (林惠榮) Plaintiff
and
LAM TAK YUEN (林德元) Defendant

______________________

Before: Hon B Chu J in Chambers (Open to Public) (By Paper Disposal)

Date of Defendant’s 1st Submissions: 21 December 2020

Date of Defendant’s 2nd Submissions: 25 January 2021

Date of Plaintiff’s Submissions: 18 February 2021

Date of Defendant’s Reply Submissions: 25 February 2021

Date of Plaintiff’s Supplemental Submissions: 11 March 2021

Date of Defendant’s Further Reply Submissions: 17 March 2021

Date of Decision: 12 April 2021

__________________________________

DECISION

(Extension of Time for Leave to Appeal

and Discharge of Injunction)

__________________________________

Introduction

1. This is a probate action and the plaintiff (“P”) and the defendant (“D”) are two out of three siblings. There are now 2 summonses issued on 21 December 2020 by D for this Court’s determination:

(1) a summons for extension of time and to apply for leave to appeal against an “unless order” of this Court, and D to have relief from sanction (“Leave Summons”);

(2) a summons to discharge an injunction made by this Court (“Discharge Summons”).

2. The “unless order” of this Court was made on 30 November 2020, namely that unless D was to comply before the specified deadline with an earlier order of this Court, D be debarred from taking any further steps in this action and that there be liberty for P to apply for judgment (“Unless Order”).

3. The earlier order was made on 4 September 2020 namely that, by the deadline specified, that (i) D was to lodge with the Probate Registry the original letters of administration granted to him in respect of the estate of his deceased mother (“Estate”) pursuant to Order 76 rule 4(1)(b) RHC and (ii) D was to file an affirmation describing the testamentary script of his mother pursuant to Order 76 rule 5 (“O76 Order”).

4. The Discharge Summons was in respect of an injunction made also on 4 September 2020 pursuant to which D has been restrained from disposing or dealing with or diminishing the value of any assets of the Estate until end of the trial or until further order (“Injunction”).

Background

5. The parties’ father Lam Chuen Dun (“Father”) and mother Chow Fook Lin (“Mother”) passed away respectively in December 2013 and April 2018. Father and Mother had 3 children, namely P being the eldest daughter and 2 sons, the older being D and the younger Lam Chi Yuen (“Chi Yuen”).

6. Mother died leaving a will made on 28 September 2017 (“Will”). The Will was said to be prepared by a solicitor Amanda Chan Yuk Ying of the solicitors firm Messrs Kevin Li & Co and was executed by Mother in the presence of the solicitor and a clerk. P was appointed the sole executor and trustee of the Will and Mother’s estate (“Estate”) was bequeathed to P and Chi Yuen in equal shares. Thus, D is not the executor nor a beneficiary of the Estate.

7. For reasons given by her[1], P did not immediately apply for probate after Mother’s death. Unbeknownst to P and Chi Yuen, in or about early 2019, D applied for a grant of letters of administration of the Estate. It was D’s case that he did not know about the existence of the Will at the time. As a result of D’s application, letters of administration of the Estate were granted to D on 20 May 2020 (“LA”) with a Schedule of Property dated 22 March 2019 and an Amended Schedule of Property dated 1 June 2020 (collectively “Schedule”).

8. According to P, the Estate consisted of, amongst other things, (i) cash in a joint account of P and Mother at the Chong Hing Bank (“Joint Account”) and accounts held by Mother at the Bank of China (HK); (ii) securities held in a securities company; (iii) 2 units in an industrial building in Kowloon and for easy reference are referred to as “405 Property” (which is subject to a mortgage) and “619 Property”; (iv) other properties said to be held by D on trust for Mother; (v) jewellery and some cash.

9. However, the Schedule attached to the LA only listed the 405 Property and the 619 Property.

10. Both the 405 Property and the 619 Property have been let to tenants and there are outgoing expenses relating thereto including mortgage payments in relation to the 405 Property.

11. Prior to Mother’s death, she and P were joint tenants of a property referred to as “Parc Versailles Property” (which was/is subject to a mortgage) of which P is now the sole owner after Mother’s death.

12. According to P, she was sent a “What’s App” message from the tenant of the 405 Property who informed her that D had represented himself to be the landlord and the tenant was told to pay D the rent instead of P and that the tenant had asked P whether D was representing P in respect of the tenancy of the property[2]. According to P, she was perplexed as D was well aware of the fact that Mother had made the Will and that D was excluded therefrom. Chi Yuen had filed an affirmation to support P’s case and he had set out in his affirmation a conversation he had with D on 3 July 2020. Chi Yuen had asked D why he had told the tenant of the 405 Property to pay the rent to him and D had responded that the property belonged to him and claimed that the Will was a fake will and that it was a crime to give effect to the Will. Anyway, P’s and Chi Yuen’s evidence was that D was well aware of the Will.

13. Upon being alerted by the tenant of the 405 Property, P and Chi Yuen conducted land searches at the Land Registry and discovered that D had registered the LA against the two properties. P said she tried to reach out to D but to no avail.

14. P then issued the writ herein on 4 August 2020, seeking amongst other things that: (i) an order for the LA granted to D be revoked; (ii) an order that P be granted probate of the Estate upon compliance of all usual and necessary formal and procedural requirements; and (iii) consequential orders for accounts and delivery up of assets, monies and property to the Estate by D.

15. The writ was served on D on 5 August 2020 and on 13 August 2020, D filed an acknowledgment of service indicating that he intended to contest the action.

16. At the time of service, the writ was accompanied by a letter from P’s solicitors to D reminding him to deposit the original LA within 14 days with the Court pursuant to Order 76 rule 4(1)(b) of RHC and D was “strongly advised to seek independent legal advice in respect thereof”[3].

17. On 20 August 2020, P issued an inter-partes summons to seek orders including that : (i) D be restrained from disposing or dealing with or diminishing the value of any assets of the Estate under Order 29 rule 1 of the RHC, and (ii) D to within 7 days set up a trust account for the Estate, for the purpose of depositing any monies including any profits generated, received or to be received by D arising out of or in connection from the Estate, and (iii) D be restrained from dealing with the monies in the trust account save for the purpose of paying ongoing reasonable expenses for the maintenance of the Estate (“Injunction Summons”).

18. The following day, ie 21 August 2020, P’s solicitors had sent to D by way of service a copy of the Injunction Summons together with P’s and Chi Yuen’s supporting affirmations, and D was again reminded in P’s solicitors’ covering letter to comply with Order 76 rule 4(1)(b) and to deposit the original LA into Court on or before 27 August 2020.

19. Notwithstanding being reminded by P’s solicitors to lodge the original LA into Court and to file the affirmation of testamentary script, D had failed to do so, and further he filed 2 documents in Chinese on 18 August 2020, which appeared to be of same contents and purported to be his defence. In those “defences”, D had claimed that Mother had a brain tumour in 2017 and it was not possible that she could have made the Will and that he objected to the LA being revoked as it was obtained lawfully. These two documents headed “defence” were filed prior to P having filed any statement of claim.

20. Pursuant to Order 76 rule 7, P was to file her statement of claim 8 days after D had complied with Order 76 rule 5. Due to D’s failure to comply with rule 5, P then issued a summons on 1 September 2020 for time extension to file her statement of claim (“Extension Summons”).

21. P’s Injunction Summons and Extension Summons were both fixed for a 30 minute hearing before this Court on 4 September 2020 (“1st Hearing”). D appeared in person at the 1st Hearing.

22. At the 1st Hearing, the Court had in fact provided Chinese versions of Order 76 rule 4 and 5 to D and this Court had explained to D the provisions therein, and had proposed to give him further time to read the same. D had initially claimed his eyesight was slightly defective and the Court had suggested that the Court interpreter to explain to him the relevant provisions of Order 76, whereupon D then said he had understood what was explained by the Court and did not need any interpretation. D was thus fully aware of the provisions of Order 76 rules 4 and 5. This Court had advised D that he should seek legal advice and D had said at the time he would go and consult a solicitor.

23. As to the opening of the trust account as sought by P in the...

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