YIP SHUNG KIN AND ANOTHER v. YIP WING CHING

YIP SHUNG KIN AND ANOTHER v. YIP WING CHING

Unchallenged credible witness evidence proved due execution and testamentary capacity and affirmative evidence showed knowledge and approval; the alleged beneficiary involvement did not attract the Barry v Butlin vigilance test and the defendant failed to particularise or provide evidence of undue influence, so no triable issue exists and summary judgment granting probate and striking out the counterclaim is appropriate and costs follow the event.

Citation
YIP SHUNG KIN AND ANOTHER v. YIP WING CHING
Parties
Plaintiff / Executor: Mr Yip Shung Kin; Plaintiff / Executor: Mr Yip Tin Yau; Defendant: Mr Yip Wing Ching
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 June 2017
Case Number
HCAP30/2016
Procedural Posture
Probate (will Propounding) / Hearing on Summons for Summary Judgment and Application to Strike Out Counterclaim; Decision Entered
Outcome
Judgment for the plaintiffs; probate granted in solemn form; defendant's counterclaim struck out; costs ordered against defendant (nisi).
Legal Topics
Will Propounding, Testamentary Capacity, Execution Formalities, Knowledge and Approval of Will, Undue Influence, Summary Judgment, Strike Out Procedure, Costs
Source Language
EN
Probate Wills and Estates Civil Procedure Will Propounding Testamentary Capacity Execution Formalities Knowledge and Approval of Will Undue Influence +3 more

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Parties

Mr Yip Shung Kin

Plaintiff / Executor

Mr Yip Tin Yau

Plaintiff / Executor

Mr Yip Wing Ching

Defendant

Procedural Posture

Probate (will Propounding) / Hearing on Summons for Summary Judgment and Application to Strike Out Counterclaim; Decision Entered

Legal Issues

  1. 1 Whether the Will was validly executed in accordance with s.5 Wills Ordinance (Cap.30)
  2. 2 Whether the deceased had testamentary capacity when executing the Will
  3. 3 Whether the deceased knew and approved the contents of the Will (including application of Barry v Butlin second rule)

Ratio Decidendi

Unchallenged credible witness evidence proved due execution and testamentary capacity and affirmative evidence showed knowledge and approval; the alleged beneficiary involvement did not attract the Barry v Butlin vigilance test and the defendant failed to particularise or provide evidence of undue influence, so no triable issue exists and summary judgment granting probate and striking out the counterclaim is appropriate and costs follow the event.

Court Disposition

Judgment for the plaintiffs; probate granted in solemn form; defendant's counterclaim struck out; costs ordered against defendant (nisi).

Orders

  • Amendment of summons to include strike out application allowed with no order as to costs
  • Judgment entered for the plaintiffs