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Wong Wai Ming v Wong Shing Chi Johnly

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date06 January 2014
Year2014
Judgement NumberHCAP28/2012
Subject MatterProbate Action
CourtHigh Court (Hong Kong)
HCAP28/2012 WONG WAI MING v. WONG SHING CHI JOHNLY

HCAP 28/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 28 OF 2012

_________________________
IN THE ESTATE OF TANG LAN (鄧蘭), late of Flat H, 10th Floor, Block 2, Crystal Park, 50 Ma Tin Road, Yuen Long, New Territories, Widow, Deceased
And
IN THE MATTER OF Caveat No 1675 of 2012
_________________________

BETWEEN

WONG WAI MING (王慧明) Plaintiff
and
WONG SHING CHI JOHNLY (王承志) Defendant

________________________

Coram: Before Master Levy in Chambers
Dates of Hearing: 25 September 2013, 13 December 2013 (on paper)
Date of Handing Down Decision: 6 January 2014

________________

D E C I S I O N

________________

A. Introduction

1. The deceased, Mdm Tang Lan, a widow, died in October 201l. She had two lawful and natural daughters, Wong Wai Ming the plaintiff in this action (“the plaintiff”), and Wong Wai Kwan (“the pre-deceased Daughter”), the latter of whom died before the deceased and was survived by a son.

2. In January 2012, the plaintiff, through her solicitors, filed in the Probate Registry an application for letters of administration of the deceased’s estate. In the oath in support of the application, intestacy was being averred. It was further averred that the deceased only had two lawful and natural children - the plaintiff herself and the pre-deceased Daughter. It was asserted in the concluding paragraph of the oath that she was the only person entitled to the estate of the deceased[1].

3. In April 2012, Wong Shing Chi Johnly, the defendant in this action (“the defendant”), through his solicitors, entered a caveat against the sealing of grant. The plaintiff filed a warning to the caveat, requiring the defendant to give particulars of his interest contrary to that of the plaintiff’s.

4. After the caveat was properly warned, the defendant, in September 2012, entered an appearance to the warning, in which he set out his interest, stating that:

“The Deceased died intestate. The Caveator is the lawful and natural son of the Deceased or alternatively a child of the Deceased within the meaning of the Intestates’ Estate Ordinance, and is entitled to share and has interest in the estate of the Deceased.”

5. This was followed by the commencement of this probate action in October 2012, in which the plaintiff asserts that the deceased had died intestate, and asks for letters of administration to be granted to her.

B. The defendant’s summons

6. In the defence and counterclaim filed on 5 December 2012, the defendant asserts his belief that the deceased had executed a will, and that the plaintiff, a Mr Dun (who is the younger brother of the deceased) and Mdm Chan (Mr Dun’s wife) have knowledge of the whereabouts of the will. The defendant further states that he is not the deceased’s natural son, but claims to be her adopted son.

7. On the same day of the filing of the defence, the defendant also issued the present summons requiring Mr Dun and Mdm Chan to attend court for examination. Section 7 of the Probate and Administration Ordinance, Cap. 10 (“PAO”), Order 76 rule 13, Rules of the High Court and the inherent jurisdiction of the Court are being referred to in the margin note of the summons.

8. The plaintiff maintains a neutral stance, but Mr Dun and Mdm Chan object to the application.

C. The grounds in support of the application

C.1 the statutory provisions

9. The court’s power of granting of an order for examination under section 7, PAO, is to be found in subsection (2) only, and subsection (3) is concerned with the Registrar’s power to issue a subpoena, and is therefore not relevant to the application. Since subsection (1) is also linked to subsection (2), I set them out below:

Subsections (1) and (2):

“(1) The court may, on motion or petition or otherwise, in a summary way, whether any proceedings are or are not pending in the court with respect to any probate or administration, order any person to produce and bring into the Registry, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he has knowledge of any such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to an action in the court and had made such default.”

C.2 the evidence

10. Affirmation evidence was filed by the defendant, his wife, Mdm Yau, and Mr Dun and Mdm Chan.

11. Upon the direction of the court, the plaintiff on 18 October 2013 later filed an affirmation dealing with the issue of will search (“the plaintiff’s affirmation”), which will be further discussed in § 40 below.

12. The evidence the defendant relies on in support of his belief has been succinctly summarized by his counsel, Mr Wong, in his written submission of 19 September 2013, and I would respectfully adopt it with appropriate amendments as follows:-

(1) Afterthe death of the pre-deceased Daughter in 1998, the deceased had allegedly told the defendant that she wished to make a will in a solicitors’ office.[2]

(2) On a day in 2000, Mr Dun came to look for the deceased in her Yuen Long store, but she was not there. When the deceased returned to the store, they left together and the deceased allegedly told Mdm Yau (who was then helping in the store) that she was going to execute a will, and asked her not to tell the plaintiff where she had gone.[3]

(3) At the deceased’s death bed,

(i) Mdm Chan allegedly accused the defendant of taking away the deceased’s estate.[4]

(ii) Mdm Yau allegedly overheard a conversation between the plaintiff and Mdm Chan with words to the effect that the plaintiff felt aggrieved that the deceased had decided to leave so much money to the defendant. It was further alleged that Mdm Chan had said to the plaintiff words to the effect that if Mr Dun and Mdm Chan did not say anything, no one would know that the deceased had given money to the defendant.[5]

(4) The deceased had allegedly told Mdm Yau that she had kept in a safe deposit box in the joint names of the deceased and the plaintiff her jewellery and watches as well as some important documents. Contrary to what the deceased had allegedly said about the contents of the said box, only a few items of very small value were found inside the box when it was opened after the deceased had died. [6]

13. Mr Wong submits, based on the aforesaid evidence, that the defendant has reasonable grounds to believe that Mr Dun and Mdm Chan have knowledge of the deceased’s will, and that the requirement of section 7(2) has been met.

D. The opposition

14. Both Mr Dun and Mdm Chan denied such events as alleged by the defendant and Mdm Yau, and of having any knowledge as to whether the deceased had executed any wills or documents that were testamentary in nature.

15. Mr KM Wong, solicitor for Mr Dun and Mdm Chan, hence, contends that the defendant’s allegations are bare assertions as they are unsupported by any corroborative evidence. It is further contended that given the nil result of the will search, and further that Mr Dun and Mdm Chan have already confirmed on oath their lack of knowledge, the defendant’s summons was only a fishing exercise.

E. The applicable principles

16. Applications under section 7, PAO, especially under subsection (2), are rarely made. Apart from the textbook commentaries (to be discussed at § 18 below), there is virtually no authority in Hong Kong in respect of an application under subsection (2).

17. Reference thus needed to be made by Mr KM Wong to the equivalent of the UK provisions and the English authorities in his supplemental skeleton submission after having spent much effort in trying to locate authorities in Hong Kong without result.

18. The only Hong Kong reference Mr KM Wong referred to is in the commentary of a Hong Kong textbook, Butterworths Hong Kong Probate, Administration and Trustee Handbook[7], which contains helpful source materials and comments in relation to subsections (1) and (2).

“The corresponding English provision is the Supreme Court Act 1981 ss122 and 123 … [8]

[The] section emphasizes the importance of ensuring that all wills and other testamentary documents are discovered and considered for a grant of probate or administration…. [9]

This Subsection [(2)] governs the situation not within the circumstances of subsection (1), where there are reasonable grounds for believing that a person has knowledge of such paper or writing… Failure to do so will constitute a contempt of court. It is thought that the power is rarely if ever utilized.”[10]

19. Section 122 of the English Supreme Court Act (“the UK Act”) is akin to our section 7(1) and (2), PAO, while section 123 of the UK Act to section 7(3). As already stated in § 9 above, subsection (3) is not applicable to this application. Thus, for the purpose of this application, only section 122 of the UK Act needs to be referred to.

20. Section 122(1)[11] of the UK Act, similar to our section 7(2), PAO, also confers on the court a power of examination when it...

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