TONG WING KIN AND ANOTHER v. HURST, TONG TZE MING OPHELIA AND OTHERS

TONG WING KIN AND ANOTHER v. HURST, TONG TZE MING OPHELIA AND OTHERS

Clause 3 was ambiguous on its face or when read with surrounding circumstances so extrinsic evidence is admissible under s23B; documents relating to drafting and preparation of the Will are relevant and necessary for a fair disposal therefore discovery under Order 24 r 3 is ordered; counsel advices were obtained in the course of estate administration for the benefit of the estate (joint interest with beneficiaries) and not clearly for the executrix's personal benefit, so legal professional privilege does not bar disclosure to the plaintiffs; accordingly discovery of the drafting documents and of the two counsel advices is ordered and specific costs directions were made.

Citation
TONG WING KIN AND ANOTHER v. HURST, TONG TZE MING OPHELIA AND OTHERS
Parties
1st Plaintiff: TONG WING KIN (唐榮健); 2nd Plaintiff: TONG WING YIU STEVEN (唐榮耀); 1st Defendant; Executrix of the Estate of Tong Biu: HURST, TONG TZE MING OPHELIA (許唐梓明); 2nd Defendant: FUNG TONG TZE MIN PATRICIA (馮唐梓棉); 3rd Defendant: CHAN TONG TZE MEI (陳唐梓薇); 4th Defendant: YIU TONG TZE MUI BELINDA (饒唐梓梅); 5th Defendant: HO TONG TZE SHEUNG ROVENA (何唐梓嫦); 6th Defendant: TONG TZE MAY ABBE (唐梓美); 7th Defendant: CHAN TONG TZE YIN PANSY (陳唐梓燕); 8th Defendant; Executor of the Estate of Cheng Kit Yu, Deceased: TONG WING BUN (唐榮斌)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 December 2015
Case Number
HCMP2379/2014
Procedural Posture
Administration Action (probate) Under Order 85 Rule 2 RHC / Chambers Judgment on Interlocutory Discovery Applications
Outcome
Orders for discovery granted in terms of the March and October 2015 summonses; costs allocated between executrix personally and the estate as specified
Legal Topics
Discovery, Construction of Wills, Extrinsic Evidence Under Wills Ordinance S23 B, Legal Professional Privilege and Joint Interest, Beddoe Proceedings, Costs Orders
Source Language
EN
Succession and Probate Trusts and Fiduciary Duties Civil Procedure Evidence Law Professional Privilege Discovery Construction of Wills Extrinsic Evidence Under Wills Ordinance S23 B +3 more

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Parties

TONG WING KIN (唐榮健)

1st Plaintiff

TONG WING YIU STEVEN (唐榮耀)

2nd Plaintiff

HURST, TONG TZE MING OPHELIA (許唐梓明)

1st Defendant; Executrix of the Estate of Tong Biu

FUNG TONG TZE MIN PATRICIA (馮唐梓棉)

2nd Defendant

CHAN TONG TZE MEI (陳唐梓薇)

3rd Defendant

YIU TONG TZE MUI BELINDA (饒唐梓梅)

4th Defendant

HO TONG TZE SHEUNG ROVENA (何唐梓嫦)

5th Defendant

TONG TZE MAY ABBE (唐梓美)

6th Defendant

CHAN TONG TZE YIN PANSY (陳唐梓燕)

7th Defendant

TONG WING BUN (唐榮斌)

8th Defendant; Executor of the Estate of Cheng Kit Yu, Deceased

Procedural Posture

Administration Action (probate) Under Order 85 Rule 2 RHC / Chambers Judgment on Interlocutory Discovery Applications

Legal Issues

  1. 1 Whether clause 3's phrase "一切權益" includes assets held in the deceased's name but used or treated as business assets of Tong Sek Kee
  2. 2 Whether extrinsic evidence including drafting papers and a handwritten note is admissible under s23B Wills Ordinance to construe the Will
  3. 3 Whether documents sought are relevant and necessary for a fair disposal under Order 24 RHC

Ratio Decidendi

Clause 3 was ambiguous on its face or when read with surrounding circumstances so extrinsic evidence is admissible under s23B; documents relating to drafting and preparation of the Will are relevant and necessary for a fair disposal therefore discovery under Order 24 r 3 is ordered; counsel advices were obtained in the course of estate administration for the benefit of the estate (joint interest with beneficiaries) and not clearly for the executrix's personal benefit, so legal professional privilege does not bar disclosure to the plaintiffs; accordingly discovery of the drafting documents and of the two counsel advices is ordered and specific costs directions were made.

Court Disposition

Orders for discovery granted in terms of the March and October 2015 summonses; costs allocated between executrix personally and the estate as specified

Orders

  • Order in terms of paragraphs 1 and 2 of the March 2015 Summons: discovery of all documents relating to drafting, preparation and execution of the Will including drafts and instructions to solicitors
  • Order in terms of paragraphs 1 and 2 of the October 2015 Summons: discovery of all legal advice obtained by the executrix on construction of the Will and all instructions given to obtain such legal advice (production of two counsel advices)