HCAG 14848/2020

[2024] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 14848 OF 2020

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DECISION

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Introduction

1. This is an application for grant based on a homemade Will under the non-contentious probate jurisdiction of this Court.

Background

2. The Deceased passed away on 22 April 2020 at the age of 68.

3. On 3 December 2020, the Applicant filed the present application for letters of administration with Will annexed, relying on a Will written by the Deceased himself, and witnessed by two ladies, Madam Sze and Madam Wong. Under the Will, he did not name any executor and only disposed of his interest in a landed property to his brother, the Applicant.

4. In the N4.1 filed herein by the Applicant, the landed property was the only estate left by the Deceased.

5. The Court raised requisitions regarding, among others, capacity of the Applicant under the Will. The solicitor acting for the Applicant answered them. Due to Covid-19, the matter was dragged on for some time because the Applicant was stuck in China.

6. In mid-2023, a legal point arouse from the answers provided by the Applicant, namely, the gift of landed property was void because one of the attesting witnesses was the “wife” of the Applicant, hence, contrary to section 10 (1) of the Wills Ordinance ( Cap.30 ) (“WO”), heading with “ Avoidance of gifts to attesting witnesses and their spouses ”. The solicitor acting for the Applicant disagreed. On 13 June 2023, I wrote to set out the followings.

“ The matter has recently been raised before me on the issue: whether the gift to the spouse of an attesting witness under the will is or is not void under section 10 (1) of Wills Ordinance ( Cap 30 ) (“WO”). Upon reading the materials, I set out the key events for the present purpose.

1. …

2. …

3. The present issue arose when requisition no 6 was issued on 27 March 2023 and answered by the affirmation of Madam Wong filed on 31 March 2023. It was then first made known to the Court that Madam Wong was the wife of the Applicant and Beneficiary of the landed property in the Will. It thereafter triggered the applicability of s 10 WO herein.

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Having considered the submissions of the solicitor by letters of 21 April 2023 and 18 May 2023, and after a small research done on our part, I have the following preliminary observations to make.

(a) No authority has been provided by the solicitor to support his/her submissions and requisition no.9 remains unanswered.

(b) Will is an important document and WO lays down a number of formalities to be complied with. To avoid hardship in some instances, the legislature provides a number of “exceptions” for failure of formalities under some sections.

(c) The proposition that the attestation of Madam Wong can be disregarded and/or substituted by [