CHOY PO CHUN AND ANOTHER v. AU WING LUN

CHOY PO CHUN AND ANOTHER v. AU WING LUN

Interrogatories were set aside because the rules require interrogatories to be served on and answered by parties not by witnesses or agents, and many questions were improper as they sought matters for cross-examination or were irrelevant; an unless order was granted (28 days) because plaintiffs gave unsatisfactory reasons for failing to produce their expert report on mental capacity; the application to strike out the defendant's psychiatric report was dismissed because the criticisms affected weight not admissibility; leave to adduce expert evidence on physical ability was refused because the defendant had not established a sufficiently clear case that expert evidence would be necessary...

Citation
CHOY PO CHUN AND ANOTHER v. AU WING LUN
Parties
Daughter in Law and Grandson of Deceased; Claimants Under 2002 English Will: Plaintiffs; Son of Deceased; Respondent Relying on 2008 Chinese Will: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 July 2015
Case Number
HCAP7/2010
Procedural Posture
Probate / Will Contest (civil) / Interlocutory Applications Hearing (pre Trial)
Outcome
Interlocutory relief granted in part and refused in part: plaintiffs' interrogatories set aside; an unless order made requiring plaintiffs to file and serve an expert report on the deceased's mental capacity within 28 days; plaintiffs' application to strike out/expunge the defendant's expert psychiatric report...
Legal Topics
Interrogatories, Unless Order, Strike Out Expert Report, Leave to Adduce Expert Evidence, Testamentary Capacity, Will Forgery Allegations
Source Language
EN
Probate Civil Procedure Evidence Medical Experts Capacity Law Interrogatories Unless Order Strike Out Expert Report +3 more

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Parties

Plaintiffs

Daughter in Law and Grandson of Deceased; Claimants Under 2002 English Will

Defendant

Son of Deceased; Respondent Relying on 2008 Chinese Will

Procedural Posture

Probate / Will Contest (civil) / Interlocutory Applications Hearing (pre Trial)

Legal Issues

  1. 1 Whether interrogatories served on a party can require answers from the party's agents/witnesses by affidavit
  2. 2 Whether the interrogatories served were permissible or were matters for cross-examination or irrelevant
  3. 3 Whether an unless order should be made compelling the plaintiffs to file an expert report on the deceased's mental capacity

Ratio Decidendi

Interrogatories were set aside because the rules require interrogatories to be served on and answered by parties not by witnesses or agents, and many questions were improper as they sought matters for cross-examination or were irrelevant; an unless order was granted (28 days) because plaintiffs gave unsatisfactory reasons for failing to produce their expert report on mental capacity; the application to strike out the defendant's psychiatric report was dismissed because the criticisms affected weight not admissibility; leave to adduce expert evidence on physical ability was refused because the defendant had not established a sufficiently clear case that expert evidence would be necessary...

Court Disposition

Interlocutory relief granted in part and refused in part: plaintiffs' interrogatories set aside; an unless order made requiring plaintiffs to file and serve an expert report on the deceased's mental capacity within 28 days; plaintiffs' application to strike out/expunge the defendant's expert psychiatric report...

Orders

  • Plaintiffs' interrogatories set aside
  • Unless order: plaintiffs to file and serve expert report on deceased's mental capacity within 28 days or be barred from adducing such expert evidence at trial