The Hong Kong Court of Appeal in Chiu Mei Cherry v Yip Ngan Yuk and anor [2025] HKCA 677 allowed the Defendants’ appeal against a summary judgment awarded in favour of the Plaintiff to propound a will in solemn form, and reaffirmed that summary judgment in such actions will only be awarded in rare cases.

Background

The Deceased and the 1^st Defendant were married in January 1981. Their son, the 2^nd Defendant, was born in December 1981. In around 2019, the Deceased entered into an extra-marital relationship with the Plaintiff, who later gave birth to their son in November 2021 (the “Younger Son“).

The Deceased passed away on 8 September 2022. During his lifetime, the Deceased made three wills:

1. A will dated 6 October 2021 (the “First Will“), where the Deceased appointed the 1^st and 2^nd Defendants as executors, and bequeathed his properties and residuary estate to them;
2. A will dated 15 June 2022 (the “Second Will“), where the Deceased appointed the 2^ndDefendant as executor, and bequeathed his properties and residuary estate to the 1^st and 2^nd Defendants, save for one of the properties to be bequeathed to the Younger Son; and
3. A will dated 26 July 2022 (the “Third Will“), where the Deceased appointed the Plaintiff as executrix, and bequeathed his properties and interests to the Plaintiff. The Third Will also contained a statement that the Deceased would exclude the 1^stand 2^nd Defendants from any entitlement under his estate, citing their failure to care for him and assist with his medical and living expenses following his cancer diagnosis and hospitalisation in around February 2022.

Both the First Will and Second Will were prepared by a solicitor, Ms. Cho, who managed the Deceased’s property transactions for many years.

The Third Will was prepared by another solicitor’s firm and was executed in the presence of a solicitor (“Mr. Lin”) and a clerk from the same firm. On the same day, prior to the execution of the Third Will, a psychiatrist purportedly certified that the Deceased was of sound mind, and was mentally fit to make the Third Will.

After the Deceased passed away, the Plaintiff commenced the present probate action to propound for the force and validity of the Third Will. The Defendants challenged the Third Will on, inter alia, the following grounds:

• The Third Will was executed by the Deceased at a time without requisite testamentary capacity;
• The circumstances surrounding the execution of the Third Will raised queries as to whether the Deceased knew and approved of the contents of the Third Will;
• The Third Will was procured by undue influence of the Plaintiff over the Deceased, particularly in view of their extra-marital relationship and the birth of the Younger Son; and
• The Third Will did not reflect the true testamentary intentions of the Deceased concerning the distribution of his estate, as it was executed following his cancer diagnosis and hospitalisation.

The Court of First Instance dismissed the Defendants’ defence as being insufficient to challenge the Plaintiff’s clear evidence, and that the Defendants failed to raise any issue that ought to be tried or that for some other reason there ought to be a trial. Thus, the Plaintiff successfully obtained summary judgment, and the force and validity of the Third Will was pronounced in solemn form. The Defendants appealed against the summary judgment.

The Court’s Findings

The Court of Appeal allowed the appeal, set aside the summary judgment and granted the Defendants unconditional leave to defend.

The Court of Appeal held that the Defendants should be given an opportunity to challenge the evidence of the witnesses relied upon by the Plaintiff at trial by reason of the following distinctive features of the case:-

Significant modifications to the estate distribution: The Second Will and the Third Will were executed just over a month apart, but the latter will fundamentally altered the distribution of the Deceased’s estate, resulting in the complete disinheritance of the 1^st Defendant (the Deceased’s wife for 41 years), the 2^nd Defendant (the Deceased’s eldest son), as well as the Younger Son. The Court of Appeal disagreed with the judge at first instance that there was nothing suspicious at all about this, and noted that the Deceased was careful in making provisions for the Younger Son under the Second Will (a similar provision of which was not present in the Third Will). As the Defendants seriously disputed the Plaintiff’s allegation that they failed to care for the Deceased and/or pay for his medical/living expenses, the Court of Appeal considered that the Defendants should be allowed a full and proper opportunity to challenge the Plaintiff’s assertion that they were completely disinherited by reason of the lack of care for the Deceased at trial.

Refusal of previous solicitor to prepare another will for the Deceased: The 1^st Defendant filed an affirmation stating that Ms. Cho declined the Deceased’s request to prepare a further will based on concerns about the Deceased’s mental state, as (i) the request came shortly after the Second Will was executed, and (ii) the proposed contents significantly departed from the previous two wills. The judge at first instance did not give weight to the 1^st Defendant’s evidence, as he took the view that without any affirmation evidence made directly by Ms. Cho, what the 1^st Defendant stated was simply her own belief. Moreover, Ms. Cho’s doubts about the Deceased’s testamentary capacity were immaterial, as she did not verify the rationale behind the Deceased’s complete change of mind regarding the distribution of his estate. The judge at first instance placed significant weight on the fact that the Deceased’s testamentary capacity was supported by the psychiatrist’s assessment and Mr. Lin’s evidence. The Court of Appeal noted that Ms. Cho was well-acquainted with the Deceased, having managed most of his property transactions over the years and previously prepared the First Will and Second Will for him. Given her neutrality in the disputes between the Plaintiff and Defendants, Ms. Cho would unlikely have refused the Deceased’s request save for compelling reasons. Accordingly, Ms. Cho’s refusal to prepare a new will for the Deceased was an issue that warranted closer scrutiny and should not have been summarily dismissed without further inquiry.

The circumstances in which the drafter of the Third Will was instructed is unclear: The Defendants relied on the second rule in Barry v Butlin (1838) 2 Moo PC 480 to invite the Court to be vigilant and jealous in examining the evidence in support of the due execution of the Third Will, by reason that the Third Will was prepared by Mr. Lin, who was introduced to the Deceased by the solicitor eventually acting for the Plaintiff in the probate action. The judge at first instance rejected this argument and considered that the second rule in Barry v Butlin was inapplicable as there was no evidence that the Plaintiff (the beneficiary under the Third Will) referred Mr. Lin to the Deceased. The Court of Appeal took the view that the circumstances in which Mr. Lin was engaged was far from clear, especially when there was no evidence that he previously acted for the Deceased. Hence, whether the second rule in Barry v Butlin has any application ought to be determined in a trial instead of summarily.

Apparent errors in the assessment of the Deceased’s testamentary capacity: The Defendants complained that there were errors in the psychiatrist’s assessment of the Deceased’s testamentary capacity, as points were awarded to the Deceased despite his failure to complete certain tasks. The judge at first instance rejected such criticisms, by reason that the Defendants were not medical experts and did not have the relevant assessment marking scheme, and thus were not in a position to challenge the psychiatrist’s evaluation. The Court of Appeal disagreed, and took the view that the errors (or possible errors) made by the Deceased were readily evident on the assessment sheet completed by him. It was therefore reasonable to afford the Defendants with an opportunity to seek clarifications and cross-examine the psychiatrist at trial.

In light of the above contentious distinctive features, and taking into account the Deceased’s age and health conditions when the Third Will was executed, the Court of Appeal was satisfied that there were issues or questions in dispute which ought to be tried at trial. Hence, the Court of Appeal set aside the summary judgment by the Court of First Instance.

Implications and Significance

This case is a reminder that in contentious probate actions, where the Court’s jurisdiction is in rem and inquisitorial, summary judgment will only be reserved in the most unequivocal cases. Where there are allegations involving multiple wills with significant changes to the disposition of an estate, disinheritance of close family members, and/or lack of testamentary capacity, it would be appropriate for such allegations to be explored in a full trial.

The full judgement can be accessed here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=170771&currpage=T