YAU LING CHEE BY HER NEXT FRIEND CHAN WAI PING KARINA v. CHAN FAI

YAU LING CHEE BY HER NEXT FRIEND CHAN WAI PING KARINA v. CHAN FAI

Applying the Zhang five‑part test, the court found all requirements satisfied: applicant and defendant were likely parties to anticipated declaratory or statutory will proceedings; the 2008 will and power of attorney were likely in defendant's possession; the documents were directly relevant and would likely be relied upon; and pre‑action discovery was necessary to dispose fairly and save costs. The court therefore ordered pre‑action discovery with timing tied to service of the order and made a costs order nisi reflecting defendant's dilatory conduct.

Citation
YAU LING CHEE BY HER NEXT FRIEND CHAN WAI PING KARINA v. CHAN FAI
Parties
Plaintiff (by Next Friend): P; Next Friend / Applicant (nf): Chan Ping Karina; Defendant: D
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 May 2017
Case Number
HCMP2737/2016
Procedural Posture
Pre Action Discovery Application Under Section 41 High Court Ordinance / Interlocutory Hearing and Order for Pre Action Discovery
Outcome
Pre-action discovery granted in part pursuant to section 41 HCO and Order 24 r.7A; timings of compliance fixed to service of the order; costs order nisi made
Legal Topics
Section 41 High Court Ordinance, Order 24 Rule 7 a Rules of the High Court, Mental Health Ordinance Statutory Will Jurisdiction, Validity of Wills and Testamentary Capacity, Necessity Test for Pre Action Discovery
Source Language
EN
Pre Action Discovery Mental Capacity and Guardianship Probate and Succession Declaratory Relief Statutory Will Section 41 High Court Ordinance Order 24 Rule 7 a Rules of the High Court Mental Health Ordinance Statutory Will Jurisdiction +2 more

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Parties

P

Plaintiff (by Next Friend)

Chan Ping Karina

Next Friend / Applicant (nf)

D

Defendant

Procedural Posture

Pre Action Discovery Application Under Section 41 High Court Ordinance / Interlocutory Hearing and Order for Pre Action Discovery

Legal Issues

  1. 1 Whether pre-action discovery should be ordered under section 41 HCO and O.24 r.7A
  2. 2 Whether the requested 2008 will and 2008 power of attorney are directly relevant and likely in defendant's possession
  3. 3 Whether applicant has reasonable prospect of bringing declaratory relief or statutory will proceedings

Ratio Decidendi

Applying the Zhang five‑part test, the court found all requirements satisfied: applicant and defendant were likely parties to anticipated declaratory or statutory will proceedings; the 2008 will and power of attorney were likely in defendant's possession; the documents were directly relevant and would likely be relied upon; and pre‑action discovery was necessary to dispose fairly and save costs. The court therefore ordered pre‑action discovery with timing tied to service of the order and made a costs order nisi reflecting defendant's dilatory conduct.

Court Disposition

Pre-action discovery granted in part pursuant to section 41 HCO and Order 24 r.7A; timings of compliance fixed to service of the order; costs order nisi made

Orders

  • Within 14 days of service of this order on the defendant the defendant shall file an affidavit stating whether the 2008 will and 2008 power of attorney were or have been in his possession, custody or power and if not when he parted with them and what became of them
  • Within 21 days of service of this order on the defendant the defendant shall produce the requested documents (insofar as within his possession, custody or power) for inspection by the plaintiff's solicitors and/or NF