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Yau Kwok Ying v The Estate Of Szeto Pui Fan, Deceased And Another

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date01 December 2022
Neutral Citation[2022] HKDC 1347
Year2021
Judgement NumberDCMP450/2021
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP450/2021 YAU KWOK YING v. The estate of SZETO PUI FAN, deceased AND ANOTHER

DCMP 450/2021

(Formerly HCMP 502/2014)

[2022] HKDC 1347

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 450 OF 2021

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BETWEEN

YAU KWOK YING Applicant

and
The estate of SZETO PUI FAN, deceased 1st Defendant
SZETO WAI SHUN (the 1st and 2nd Defendants
being sued both individually and together as
Administratrix and Administrator of the estate of
YU CHUK YEE (“the Deceased”))		 2nd Defendant

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Before: Deputy District Judge Rebecca Lee in Court
Dates of Hearing: 15-16 August and 13 September 2022
Date of Judgment: 1 December 2022

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JUDGMENT

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BACKGROUND

1. The plaintiff (“P”) is the wife of Mr SZETO William (“William”) who passed away on 4 June 2007 at the age of 49. They have a son SZETO Yu Long (“YL”) (now aged about 24).

2. William, the 1st defendant (“D1”) (who passed away on 2 December 2014), and the 2nd defendant (“D2”) were and are the children of Madam YU Chuk Yee, deceased (“the Deceased”).

3. This case concerns a property known as Flat A, 4th Floor, No 78 Un Chau Street, Kowloon (“the Property”). By a Deed of Gift dated 9 June 1978 and registered in the Land Registry by Memorial No UB1536964 (“1978 Deed of Gift”), the Property was assigned to the Deceased and William as joint tenants.

4. Upon the death of William, the Deceased was entitled to the entire interest, share, and right of and into the Property.

5. On 30 July 2008, the Deceased executed a deed of gift (“the 2008 Deed of Gift”), the subject matter of dispute, by which she assigned half of the interests in the Property to P. The Deceased and P then became tenants in common in equal shares of the Property.

6. The Deceased died intestate on 21 August 2010 at the age of 83.

7. On 19 November 2013, letters of administration in respect of the estate of the Deceased was issued to D1 and D2 as the administratrix and administrator. The only substantial estate of the Deceased is the Property. The beneficiaries entitled to share the Deceased’s estate are D1 (or her estate), D2, and YL.

8. On 3 March 2014, P issued an Originating Summons (as amended on 10 April 2014) under HCMP 502/2014 against D1 and D2 as administratrix and administrator of the Deceased’s Estate as well as in their personal capacities seeking the following reliefs:-

(a) A declaration that the Property is held by P and the estate of the Deceased as tenants in common in equal shares;

(b) An order that the Property be sold and P or some other fit and proper person be appointed to convey the interest of the Deceased’s Estate therein in such manner as the court deems fit;

(c) Ds having, without consent of the P, occupied the Property to the exclusion of the P, an Inquiry as to what sums are due from the Ds to the P in respect of occupation rent for the Property;

(d) An order that the Ds do account to the P for such sums as may be found to be due to her;

(e) All necessary and consequential Accounts, Inquiries and directions;

(f) Further or other relief; and

(g) Costs.

9. In support of the Originating Summons, P filed her 1st affirmation (“P’s 1st Affirmation”).

10. On 14 July 2014, D2’s affirmation was filed (“D2’s Affirmation”).

11. P filed her 2nd affirmation on 18 September 2014 (“P’s 2nd Affirmation”).

12. D1 passed away on 2 December 2014. On 25 June 2015, Master Lai ordered that D2 be appointed to represent the estate of D1, his late sister, to carry on with these proceedings.

13. By the Order of the Hon Mr Justice L Chan made on 13 October 2015, the above 3 affirmations stand as P’s Statement of Claim, Ds’ Defence and Counterclaim, and P’s Reply and Defence to Counterclaim respectively. The affirmations also stand as the witness statements of the deponents as to factual matters and shall stand as evidence-in-chief of those deponents.

14. In addition to her 2 affirmations, P has filed a supplemental witness statement and also filed one witness statement of 萬碧君 (“Ms Man”, the conveyancing clerk handling the 2008 Deed of Gift) on 21 March 2021.

THE PARTIES’ RESPECTIVE CASES

15. It is P’s case that it was the Deceased’s intention to gift half of the Property to her and thus the 2008 Deed of Gift was executed. P produced to her 1st Affirmation exhibit “YKY-1”, a true copy of the 2008 Deed of Gift (“YKY-1 Version”).

16. As contained in P’s 1st Affirmation:-

“7. My husband William Szeto and I had a very good and harmonious relationship with the Deceased. Before my husband passed away, he regularly paid a monthly contribution of around HK$5,000 to the Deceased.

8. Since the death of my husband William Szeto, the Deceased showed even greater love and affection over myself and my son Szeto Yu Long. I would go to the Property to have dinner gathering with the Deceased’s family 2 -3 times in a month. Despite that I only earned a very modest sum of income and had lost the financial support of my husband, I still did my best to maintain the said monthly contribution to the Deceased for around 6 months, until the Deceased urged me to stop the monthly payment and focus on taking care of my son Szeto Yu Long. I therefore stopped paying the said contribution thereafter because I had genuine difficulty to afford this regularly. That said, I would sometimes give “pocket money” in the range between a few hundreds and around one or two thousand Hong Kong dollars to the Deceased when we had gatherings. Further, the Deceased would occasionally stay in my then residence for one or two weeks so that she could spend more time with and help look after my son and this continued after the death of my husband. In short, both my husband and I had good terms with the Deceased and in my view, the Deceased had all along expressed her care and love towards us as well as my son.

10. In or around mid-2008, about one year after my husband passed away, the Deceased and I discussed whether she could transfer half of the Property to me. Out of her love and affection, she wished to take care of myself and Szeto Yu Long on behalf of my husband by gifting to us half of the Property, so that my son and I can have some comfort and security in our future living, especially since we were then without the financial support of my husband, who used to be the pillar of the family. The Deceased was also herself of the view that I, being the widow of my husband, was rightfully entitled to half of the Property, as my husband owned half of the Property and it was never expected that my husband will pass away before the Deceased.

11. With gratitude and understanding her wishes, arrangements were made with solicitors to prepare the legal documents for the same. On 30 July 2008, a Deed of Gift (“the Deed”) was executed by the Deceased, by which for the purpose of effectuating such desire and in consideration of the natural love and affection the Deceased bears for myself and for divers other good consideration, the Deceased as beneficial owner assigns and releases unto myself all that her one equal undivided moiety or half part or shares of and in the Property as tenants in common in equal shares. There is now produced and shown to me a true copy of the said Deed dated 30 July 2008 marked as Exhibit “YKY-1”. At the material time, both the Deceased and I had informed the 1st and 2nd Defendant of our intended arrangement of the Property and they had no objection thereto until very recently.

12. On 27 August 2008, the Deed was duly registered at the Land Registry by the solicitors. There is now produced and shown to me a true copy of the Land Register records of the Property as of 1 March 2014 marked as Exhibit “YKY-2”.”

17. It is Ds’ case that D2 (who having resided with the Deceased in the Property since 1978) had never heard of the Deceased intending to give away any of her interest, right and entitlement in and of the Property to anyone else whether during her lifetime or upon her passing away. Ds put P to strict proof of the preparation and execution of the 2008 Deed of Gift.

18. In D2’s affirmation, D2 takes issue with the validity of the 2008 Deed of Gift:-

“9. Letters of Administration in respect of the Deceased’s estate was granted by the Probate Registry of the High Court on 19 November 2013. There is now produced and shown to me the exhibit marked “SWS-1” copy of the Letters of Administration. The 1st Defendant and I were the administrator and administratrix of the Deceased’s estate. It is not disputed that the beneficiaries entitled to share the Deceased’s estate are the 1st Defendant, myself, and Szeto Yu Long, the grandson of the Deceased and the son of the Plaintiff.

10. The only substantial estate of the Deceased is a property known as Flat A, 4th Floor, No. 78 Un Chau Street, Kowloon (“Subject Property”). The Subject Property was assigned to the Deceased and our Late Elder Brother by virtue of a Deed of Gift dated 9 June 1978 and registered in the Land Registry by Memorial No. UB1536964 who held as joint tenants. I understood that the Deceased was entitled to the entire interest and share and right of the Subject Property under the law upon the death of our Late Elder Brother on 4 June 2007.

11. I and my family (my wife and two daughters now aged 7 and 3 respectively) have all along been residing in the Subject Property occupying one of the bedrooms and sharing other areas with the Deceased (before she passed away) and the 1st Defendant. Each of the Deceased and the 1st Defendant was occupying one bedroom. We had been living and staying together as an extended family since 1978.

16. After my Late Elder Brother passed away in June 2007, the Deceased was the sole registered owner of the Subject...

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