YIP SAU CHING v. YIP CHE SHING AND OTHERS

YIP SAU CHING v. YIP CHE SHING AND OTHERS

The Judge allowed the appeal and set aside the Master\u2019s order because the applicants failed to demonstrate that the proposed psychiatric expert evidence was shown to be sufficiently relevant or necessary on the material before the court; absence of supporting affidavit/draft report and lack of contemporaneous medical records meant the court could not be satisfied the evidence would be probative for determining testamentary capacity, so leave was not justified as a matter of case management.

Citation
[2021] HKCFI 1315
Parties
Plaintiff (original Action); 1st Defendant (by Counterclaim): YIP SAU CHING; 1st Defendant (original Action); 1st Plaintiff (by Counterclaim): YIP CHE SHING; 2nd Defendant (original Action); 2nd Plaintiff (by Counterclaim): YIP SAU YUEN MAIDA; 3rd Defendant (original Action); 3rd Plaintiff (by Counterclaim): IP SAU WAI; 4th Defendant (original Action); 4th Plaintiff (by Counterclaim): IP SAU MEE JUDY; 2nd Defendant (by Counterclaim): IP CHI PANG TOMMY; 3rd Defendant (by Counterclaim): YIP SAU LING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 April 2021
Case Number
HCAP31/2018
Procedural Posture
Probate Action / Interlocutory Appeal to Judge in Chambers Against Master\u2019s Order Granting Leave for Expert Evidence
Outcome
Appeal allowed; Master\u2019s order granting leave to adduce expert medical evidence set aside
Legal Topics
Testamentary Capacity, Admissibility of Expert Evidence, Case Management Directions, Retrospective Medical Assessment, Costs
Source Language
EN
Probate Evidence Civil Procedure Medical Law Testamentary Capacity Admissibility of Expert Evidence Case Management Directions Retrospective Medical Assessment +1 more

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Parties

YIP SAU CHING

Plaintiff (original Action); 1st Defendant (by Counterclaim)

YIP CHE SHING

1st Defendant (original Action); 1st Plaintiff (by Counterclaim)

YIP SAU YUEN MAIDA

2nd Defendant (original Action); 2nd Plaintiff (by Counterclaim)

IP SAU WAI

3rd Defendant (original Action); 3rd Plaintiff (by Counterclaim)

IP SAU MEE JUDY

4th Defendant (original Action); 4th Plaintiff (by Counterclaim)

IP CHI PANG TOMMY

2nd Defendant (by Counterclaim)

YIP SAU LING

3rd Defendant (by Counterclaim)

Procedural Posture

Probate Action / Interlocutory Appeal to Judge in Chambers Against Master\u2019s Order Granting Leave for Expert Evidence

Legal Issues

  1. 1 Whether leave should be granted to adduce psychiatric expert evidence on the deceased\u2019s testamentary capacity
  2. 2 Whether the application met the relevance and necessity thresholds for expert evidence under post-Civil Justice Reform principles
  3. 3 Whether absence of a supporting affirmation or draft expert report and lack of contemporaneous medical records defeats the application

Ratio Decidendi

The Judge allowed the appeal and set aside the Master\u2019s order because the applicants failed to demonstrate that the proposed psychiatric expert evidence was shown to be sufficiently relevant or necessary on the material before the court; absence of supporting affidavit/draft report and lack of contemporaneous medical records meant the court could not be satisfied the evidence would be probative for determining testamentary capacity, so leave was not justified as a matter of case management.

Court Disposition

Appeal allowed; Master\u2019s order granting leave to adduce expert medical evidence set aside

Orders

  • Appeal allowed and Master\u2019s order set aside
  • Costs of the appeal only: counsel fees allowed in full and $140,000 for profit costs totalling $225,200, payable within 14 days