HO YIU SUM v. HO YIU LEUNG KENNY

HO YIU SUM v. HO YIU LEUNG KENNY

The court accepted the factual evidence of family witnesses and preferred the expert opinion of Dr Nip, finding on the balance of probability that the deceased lacked testamentary capacity on 14 June 2012; accordingly the will was declared null and void and letters of administration were granted to Mr Tsang Chung Yu subject to stated conditions.

Citation
[2024] HKCFI 2823
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): Ho Yiu Sum; Defendant (original Action); Plaintiff (counterclaim): Ho Yiu Leung Kenny; 2nd Defendant (counterclaim): Lee Wing Sze
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 September 2024
Case Number
HCAP20/2015
Procedural Posture
Probate Action / Trial and Judgment of Counterclaim on Affidavit Evidence Pursuant to Order 76 R12
Outcome
Will of 14 June 2012 declared null and void for lack of testamentary capacity; letters of administration granted to Mr Tsang Chung Yu; claims against Lee dismissed; no order as to costs of the counterclaim; Kenny's own costs taxed under Legal Aid Regulations.
Legal Topics
Testamentary Capacity, Validity of Will, Letters of Administration, Expert Witness Evidence, Retrospective Medical Opinion, Effect of Settlement on Evidence
Source Language
EN
Probate Succession Estate Administration Civil Procedure Medical Expert Evidence Testamentary Capacity Validity of Will Letters of Administration +3 more

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Parties

Ho Yiu Sum

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

Ho Yiu Leung Kenny

Defendant (original Action); Plaintiff (counterclaim)

Lee Wing Sze

2nd Defendant (counterclaim)

Procedural Posture

Probate Action / Trial and Judgment of Counterclaim on Affidavit Evidence Pursuant to Order 76 R12

Legal Issues

  1. 1 Whether the deceased had testamentary capacity when executing the will on 14 June 2012
  2. 2 Whether the will dated 14 June 2012 is valid
  3. 3 Whether the court should consider expert reports prepared for a party no longer pursuing the case

Ratio Decidendi

The court accepted the factual evidence of family witnesses and preferred the expert opinion of Dr Nip, finding on the balance of probability that the deceased lacked testamentary capacity on 14 June 2012; accordingly the will was declared null and void and letters of administration were granted to Mr Tsang Chung Yu subject to stated conditions.

Court Disposition

Will of 14 June 2012 declared null and void for lack of testamentary capacity; letters of administration granted to Mr Tsang Chung Yu; claims against Lee dismissed; no order as to costs of the counterclaim; Kenny's own costs taxed under Legal Aid Regulations.

Orders

  • Declaration that the will of the deceased dated 14 June 2012 is null and void or otherwise of no effect for lack of testamentary capacity at the time of making the will
  • Letters of administration of the estate of the deceased granted to Mr Tsang Chung Yu as sole administrator subject to the terms of the draft engagement letter in Appendix A to the consent summons filed on 28 November 2023 and upon compliance with usual Probate Registry requirements