MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

On the facts pleaded and assumed true for present purposes the ASOC disclosed sufficient factual material (cognitive impairment, power-dependency relationship, series of detrimental transactions and an out-of-character will) from which it was not impossible, only improbable, that undue influence by D2 could be inferred; consequently striking out §11 and prayer (f) against D2 was not justified and the Master’s decision was set aside.

Citation
[2020] HKCFI 2150
Parties
1st Plaintiff: MAK NGUN TAI (麥銀娣); 2nd Plaintiff: MAK LAI PING (麥麗萍); 3rd Plaintiff: MAK MEI WA (麥美華); 1st Defendant: FUNG MING IP (馮明業); 2nd Defendant: MAK NGAN LAI (麥銀麗)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 August 2020
Case Number
HCAP37/2015
Procedural Posture
Probate / Interlocutory Appeal Against Striking Out Order
Outcome
Appeal allowed; Master Decision set aside; 2nd Defendant's summons dismissed
Legal Topics
Undue Influence, Testamentary Capacity, Striking Out, Pleadings, Costs
Source Language
EN
Probate Wills Civil Procedure Equity Undue Influence Testamentary Capacity Striking Out Pleadings +1 more

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Parties

MAK NGUN TAI (麥銀娣)

1st Plaintiff

MAK LAI PING (麥麗萍)

2nd Plaintiff

MAK MEI WA (麥美華)

3rd Plaintiff

FUNG MING IP (馮明業)

1st Defendant

MAK NGAN LAI (麥銀麗)

2nd Defendant

Procedural Posture

Probate / Interlocutory Appeal Against Striking Out Order

Legal Issues

  1. 1 Whether the Amended Statement of Claim disclosed a reasonable cause of action against the 2nd Defendant for undue influence in the execution of the purported will
  2. 2 Whether the pleaded particulars were deficient in form and/or substance such that striking out was appropriate
  3. 3 Whether causation and identification of the alleged wrongdoer were sufficiently pleaded

Ratio Decidendi

On the facts pleaded and assumed true for present purposes the ASOC disclosed sufficient factual material (cognitive impairment, power-dependency relationship, series of detrimental transactions and an out-of-character will) from which it was not impossible, only improbable, that undue influence by D2 could be inferred; consequently striking out §11 and prayer (f) against D2 was not justified and the Master’s decision was set aside.

Court Disposition

Appeal allowed; Master Decision set aside; 2nd Defendant's summons dismissed

Orders

  • Set aside the Master Decision and dismiss the 2nd Defendant's Summons
  • 1st Defendant and 2nd Defendant to file defences (and any counterclaims) within 35 days from date of decision