No results.

InsightsCase Highlights

Hong Kong Court examines in a recent decision, Chow Lily v Chow Wai Wai Violet and Anor [2024] HKCFI 887, the question of permissible scope of evidence in actions involving challenges of the validity of wills and where the probate jurisdicton is inquisitorial in nature

13 May 2024



It is often emphasised that the court has inquisitorial functions in probate matters. But does it mean that so long as a party challenges the validity of a will and wishes to challenge the credibility and/or objectivity of a witness to be called at the trial, that party could have “carte blanche” entitlement to adduce evidence without regard to relevance and proportionality? In the recent case of Chow Lily v Chow Wai Wai Violet and Anor [2024] HKCFI 887 (“the Decision”), the Hon K Yeung J (“the Judge”) dismissed such argument and answered the question in the negative with detailed reasons, applying the Court of Final Appeal’s decision in HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428.

Background of the probate action

The plaintiff and the defendants are sisters and the daughter of the deceased (“the Deceased”), the founder of a well-known group of companies, the shares of which are listed on the Hong Kong Stock Exchange, and a committed philanthropist in Hong Kong. The probate action concerns the validity of a will executed by the Deceased (“the Disputed Will”).

The plaintiff challenges the validity of the Disputed Will, arguing that the Deceased (1) did not have the requisite mental capacity, (2) did not have knowledge and approval of the terms, and (3) did not have the requisite animus testandi.

The plaintiff sought leave to file supplemental witness statements containing paragraphs objected by the defendants on the ground of irrelevance.

The Judge disallowed those paragraphs not relevant to any of the primary issues relating to the validity of the Disputed Will, nor the collateral issues concerning credibility.

Key Takeaways

The Judge identified and adopted the “principled” approach as follows:

(a) The first step is to identify what facts and imputation the disputed evidence concerned seek to establish and support;

(b) Then, with the pleaded issues in mind, consider whether those identified facts and imputations are relevant to any primary issues;

(c) If yes, the evidence may be admitted;

(d) If not, then bearing in mind the “cardinal test of relevance”, whether the identified facts and imputations are relevant to the collateral issue of credibility, veracity, reliability or objectivity:

(i) The question is whether the identified facts and imputations materially bear upon the collateral issue;

(ii) If not, the evidence should not be admitted;

(iii) But as relevance in this context is a matter of degree, cases are not always clear cut. Hence other than in clear cut cases, considerations will be given as to whether any probative weight of the identified facts and imputations is insufficient to justify the complexity that they will add to the trial, bearing in mind at all times in particular (hence not exhaustive) the underlying objectives of the CJR, the need to confine the ambit of a trial within proper limits so as to ensure that the trial is focused on the primary issues, the notion of fairness to both the parties and the witness, procedural economy and cost-effectiveness;

(e) Evidence at the interlocutory stage is only expunged in clear cases upon the application of the above.

Such approach is based on the important legal principles analysed and reiterated by the Judge in the Decision. Among others, it is significant that the label of “credibility and/or objectivity” does not give any party the carte blanche entitlement to adduce evidence without regard to relevance and proportionality. Appreciation of the distinction between “primary issues” and “collateral issues”, albeit mostly discussed in the context of cross-examination in criminal trials, is equally important in civil cases.

As explained by the Court of Final Appeal in HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7, HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 and HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, the emphasis is that no evidence is admissible unless it is relevant to an issue in the case and the evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial.  Whether in a criminal or a civil trial the judge should be astute to prevent the primary issues being obfuscated following the admission of evidence of insufficient significance to justify the additional burden that it will impose on the hearing.

In this context, the general principles include:

(a) Where the veracity of the witness is challenged on cross-examination as to credit, cross-examination about discreditable acts is widely permitted. That is however subject to the judge’s discretion to disallow improper questions;

(b) The “cardinal test of relevance” applies. The subject matter of the cross-examination must be relevant to the witness’s veracity. Relevance is a matter of degree;

(c) In applying the test of relevance, and in the exercise of the court’s discretion, the main consideration is materiality;

(d) The “finality rule” applies to answers to such cross-examination;

(e) The “finality rule” is subject to established exceptions. They allow proof by independent evidence of matter which tend to affect the credibility of the witness.

The Judge observed that a party might contend that the intended evidence is required to establish a “factual foundation” to enable him or her to challenge, in cross-examination, the collateral issue of credit. However, that is not by itself a valid and sufficient reason which justifies the adducing of those facts. The question remains whether the facts in question may be received in accordance with the principles and considerations discussed in the above cases.

The Judge also made clear that while the trial judge will no doubt, in the course of the trial, need to resolve disagreement on relevance or irrelevance of evidence and lines of cross-examination, it does not mean that the court, in discharge of the case management functions at the interlocutory stage, has no role to play. If it is clear, at the interlocutory stage, that certain evidence falls foul of the considerations discussed above, the court should and would intervene, so as to avoid putting a party through the predicament of incurring additional time and costs on preparing for distracting collateral issues with insufficient probative value.


The full Decision is available at


Ms Teresa Wu and Ms Jacqueline Law appeared for the 1st and 2nd Defendants.