KAN MUI v. LAI CHUNG HEI AND OTHERS

KAN MUI v. LAI CHUNG HEI AND OTHERS

The 1988 Will was valid and is the last valid will because the uncontradicted solicitor witness evidence established that the testator was sober and of sound mind when he executed the 1988 Will, and medical evidence showed vascular dementia affecting capacity only from June 1988 so that the 1992 Will was executed when the testator lacked testamentary capacity; accordingly the 1988 Will is propounded and the plaintiff's action is dismissed.

Citation
KAN MUI v. LAI CHUNG HEI AND OTHERS
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): KAN MUI; 1st Defendant (original Action); 1st Plaintiff (counterclaim): LAI CHUNG HEI; 2nd Defendant (original Action); 2nd Plaintiff (counterclaim): LAI CHUNG KWAN PATRICK; 3rd Defendant (original Action); 3rd Defendant (counterclaim): LAI SHUIT MAY; 2nd Defendant (counterclaim): WONG KIU; 3rd Defendant (counterclaim) Also Referred to as LAI SUET Mui/lai SHUIT MAY: LAI SHUET MUI; 4th Defendant (counterclaim): LAI MEI YUK; Named Alternatively in Proceedings (4th Defendant by Counterclaim): LAI MEE YUK; 5th Defendant (counterclaim): LAI CHUNG SUM; 6th Defendant (counterclaim): LAI MI HAR; 7th Defendant (counterclaim): LAI MEI LING; 8th Defendant (counterclaim): LAI MEI CHUN; 9th Defendant (counterclaim): LAI CHUNG KONG; 10th Defendant (counterclaim): LAI MEI LIN; 11th Defendant (counterclaim): LAI CHUNG FAI; 12th Defendant (counterclaim): LAI CHUNG FAT
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 February 2008
Case Number
HCAP7/2001
Procedural Posture
Probate Action (will Dispute) / Hearing on Affidavit Evidence and Judgment on Counterclaim; Reasons for Judgment Delivered
Outcome
Defendants' counterclaim allowed; plaintiff's original action dismissed; 1988 Will propounded in solemn form
Legal Topics
Propounding Wills, Testamentary Capacity, Affidavit Trial (order 76 R12), Effect of Settlement on Proof of Last Will
Source Language
EN
Probate Wills Testamentary Capacity Civil Procedure Propounding Wills Affidavit Trial (order 76 R12) Effect of Settlement on Proof of Last Will

Case Brief

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Parties

KAN MUI

Plaintiff (original Action); 1st Defendant (counterclaim)

LAI CHUNG HEI

1st Defendant (original Action); 1st Plaintiff (counterclaim)

LAI CHUNG KWAN PATRICK

2nd Defendant (original Action); 2nd Plaintiff (counterclaim)

LAI SHUIT MAY

3rd Defendant (original Action); 3rd Defendant (counterclaim)

WONG KIU

2nd Defendant (counterclaim)

LAI SHUET MUI

3rd Defendant (counterclaim) Also Referred to as LAI SUET Mui/lai SHUIT MAY

LAI MEI YUK

4th Defendant (counterclaim)

LAI MEE YUK

Named Alternatively in Proceedings (4th Defendant by Counterclaim)

LAI CHUNG SUM

5th Defendant (counterclaim)

LAI MI HAR

6th Defendant (counterclaim)

LAI MEI LING

7th Defendant (counterclaim)

LAI MEI CHUN

8th Defendant (counterclaim)

LAI CHUNG KONG

9th Defendant (counterclaim)

LAI MEI LIN

10th Defendant (counterclaim)

LAI CHUNG FAI

11th Defendant (counterclaim)

LAI CHUNG FAT

12th Defendant (counterclaim)

Procedural Posture

Probate Action (will Dispute) / Hearing on Affidavit Evidence and Judgment on Counterclaim; Reasons for Judgment Delivered

Legal Issues

  1. 1 Whether the 1988 Will was valid
  2. 2 Whether the 1992 Will was valid
  3. 3 Whether the 1988 Will was the last will in date

Ratio Decidendi

The 1988 Will was valid and is the last valid will because the uncontradicted solicitor witness evidence established that the testator was sober and of sound mind when he executed the 1988 Will, and medical evidence showed vascular dementia affecting capacity only from June 1988 so that the 1992 Will was executed when the testator lacked testamentary capacity; accordingly the 1988 Will is propounded and the plaintiff's action is dismissed.

Court Disposition

Defendants' counterclaim allowed; plaintiff's original action dismissed; 1988 Will propounded in solemn form

Orders

  • Dismissed the Plaintiff's (original action) claim
  • Propound the 8 April 1988 will in solemn form; judgment entered for the Defendants on their counterclaim