HAN YI v. NGAN SHUN WAH AND OTHERS

HAN YI v. NGAN SHUN WAH AND OTHERS

On the totality of credible evidence — the deceased had the will in his custody, his relationship with the plaintiff materially deteriorated between 2003 and 2008, witnesses (including maid and children) credibly testified the deceased intended to change his testamentary arrangements, and there is no plausible alternative such as secret custody or third‑party abstraction — the rebuttable presumption that a will missing from the deceased's custody was destroyed by him stands unrebutted; thus the will was revoked by the deceased prior to death and cannot be propounded.

Citation
HAN YI v. NGAN SHUN WAH AND OTHERS
Parties
Cohabitant of Deceased; Co Executrix; Applicant to Propound Will: Plaintiff (unnamed); Defendant; Child; Co Executrix; Beneficiary (30%): 1st Defendant; Defendant; Child; Beneficiary (25%): 2nd Defendant; Defendant; Child; Counterclaimant: 3rd Defendant; Defendant; Child; Counterclaimant: 4th Defendant; Defendant; Child; Beneficiary (20%): 5th Defendant; Defendant; Child; Non Beneficiary Under Will: 6th Defendant; Deceased Testator: Yien Chi Ren
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 August 2011
Case Number
HCAP8/2008
Procedural Posture
Probate/propounding Will; Declaration and Costs / Trial Judgment (court of First Instance)
Outcome
Plaintiff's claim to propound the 10 March 2003 will dismissed; court finds the will was revoked by the deceased prior to death; declarations to 3rd and 4th defendants granted; costs order made against plaintiff
Legal Topics
Revocation of Will, Presumption of Destruction, Secondary Evidence, Custody of Testamentary Documents, Intestacy Consequences
Source Language
EN
Wills and Probate Trusts Evidence Property Revocation of Will Presumption of Destruction Secondary Evidence Custody of Testamentary Documents +1 more

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Parties

Plaintiff (unnamed)

Cohabitant of Deceased; Co Executrix; Applicant to Propound Will

1st Defendant

Defendant; Child; Co Executrix; Beneficiary (30%)

2nd Defendant

Defendant; Child; Beneficiary (25%)

3rd Defendant

Defendant; Child; Counterclaimant

4th Defendant

Defendant; Child; Counterclaimant

5th Defendant

Defendant; Child; Beneficiary (20%)

6th Defendant

Defendant; Child; Non Beneficiary Under Will

Yien Chi Ren

Deceased Testator

Procedural Posture

Probate/propounding Will; Declaration and Costs / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the missing original will was revoked by the deceased prior to death
  2. 2 Whether the rebuttable presumption that a will in deceased's custody and not found was destroyed by him applies and has been rebutted
  3. 3 Whether alternative explanations (misplacement, accidental loss, third-party abstraction, secret custody) are more probable

Ratio Decidendi

On the totality of credible evidence — the deceased had the will in his custody, his relationship with the plaintiff materially deteriorated between 2003 and 2008, witnesses (including maid and children) credibly testified the deceased intended to change his testamentary arrangements, and there is no plausible alternative such as secret custody or third‑party abstraction — the rebuttable presumption that a will missing from the deceased's custody was destroyed by him stands unrebutted; thus the will was revoked by the deceased prior to death and cannot be propounded.

Court Disposition

Plaintiff's claim to propound the 10 March 2003 will dismissed; court finds the will was revoked by the deceased prior to death; declarations to 3rd and 4th defendants granted; costs order made against plaintiff

Orders

  • Will of 10 March 2003 declared revoked and not propounded
  • Declarations granted as prayed in paragraphs (a) and (b) of 3rd and 4th Defendants' counterclaim (as held in judgment)