TAO SHEN JONG v. YUNG SAU LAN SHIRLEY

TAO SHEN JONG v. YUNG SAU LAN SHIRLEY

The court held that the defendant had reasonable grounds to contest the will at the outset but, after the disclosure of the three statutory declarations of the US attorneys, their joint declaration, Ms Wu's witness statement and the medical and cognitive reports, the plaintiff had proved due execution, testamentary capacity and knowledge and approval on the balance of probabilities; the defendant's continued opposition beyond a reasonable period (fixed as one month from availability of that evidence, or up to the eve of trial if the gap was less than one month) was unreasonable and justified varying the costs order nisi so that no order as to costs applies only up to that period and the...

Citation
TAO SHEN JONG v. YUNG SAU LAN SHIRLEY
Parties
Plaintiff Residuary Beneficiary and Sole Executor Applicant: Tao Shen Jong; Defendant Surviving Wife and Caveator: Yung Saug Lang Shirley
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 October 2015
Case Number
HCAP10/2010
Procedural Posture
Probate Action / Post Trial Application to Vary Costs Order Nisi
Outcome
Costs order nisi varied; defendant ordered to pay specified costs after defined reasonable period; partial indemnity to estate for administrators' appointment and additional administration costs; costs of application awarded to plaintiff at 70%
Legal Topics
Will Validity, Testamentary Capacity, Costs Order, Variation of Costs Order Nisi, Proof in Solemn Form, Burden of Proof
Source Language
EN
Probate Succession Civil Procedure Costs Will Validity Testamentary Capacity Costs Order Variation of Costs Order Nisi +2 more

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Parties

Tao Shen Jong

Plaintiff Residuary Beneficiary and Sole Executor Applicant

Yung Saug Lang Shirley

Defendant Surviving Wife and Caveator

Procedural Posture

Probate Action / Post Trial Application to Vary Costs Order Nisi

Legal Issues

  1. 1 Whether the defendant had reasonable grounds to oppose the will such that no order as to costs should be made
  2. 2 Whether the costs order nisi should be varied after disclosure of evidence
  3. 3 Whether the defendant should indemnify the estate for administrators' costs and additional administration costs caused by the litigation

Ratio Decidendi

The court held that the defendant had reasonable grounds to contest the will at the outset but, after the disclosure of the three statutory declarations of the US attorneys, their joint declaration, Ms Wu's witness statement and the medical and cognitive reports, the plaintiff had proved due execution, testamentary capacity and knowledge and approval on the balance of probabilities; the defendant's continued opposition beyond a reasonable period (fixed as one month from availability of that evidence, or up to the eve of trial if the gap was less than one month) was unreasonable and justified varying the costs order nisi so that no order as to costs applies only up to that period and the...

Court Disposition

Costs order nisi varied; defendant ordered to pay specified costs after defined reasonable period; partial indemnity to estate for administrators' appointment and additional administration costs; costs of application awarded to plaintiff at 70%

Orders

  • Defendant to pay 70% of the costs of this variation application to be taxed with certificate for two counsel