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In re the Estate of Harry Janson Ho [1993] FJHC 48; Hbc0010d.89s (3 June 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)

PROBATE ACTION NO. 10 OF 1989

IN THE ESTATE of Harry Janson Ho
aka Ho Ki Jan of Suva, Fiji, Businessman.

BETWEEN:

KENNETH MICHAEL JANSON HO and
LEONG FAI LEING
Plaintiffs

AND:

VICTOR JANSON HO
Defendant

Mr. R.A. Smith and Mr. S. Parshotam: For the Plaintiffs
Dr. M.S. Sahu Khan: For the Defendant

Dates of Hearing: 24th July 1991, 9th March and 3rd November 1992
Date of Ruling: 3rd June 1993

RULING ON PLAINTIFFS' REQUEST FOR FURTHER PARTICULARS
OF STATEMENT OF DEFENCE AND COUNTER-CLAIM

In this case, by the Statement of Claim annexed to the Writ issued on the 28th of June 1989, the Plaintiffs who are the executors appointed under the Will of Harry Janson Ho also known as Ho Ki Jan who died on 5th of May 1988, seek Probate of the Will of the deceased bearing date 11th December 1986.

The Defendant, by his Statement of Defence alleges first that the Will sought to be propounded by the Plaintiffs was not duly executed according to the Wills Act Cap. 59 and then makes further allegations relating to the knowledge and testamentary capacity and/or the capacity of the deceased to approve the contents of the alleged Will.

It is claimed that at the time when the Will sought to be probated was said to have been executed the deceased was not of sound memory and understanding and was so impaired physically and mentally that he was unable to manage his affairs or to form rational opinions as to the extent of his property or the claims of others upon his bounty and did not understand the nature of the dispositions of the alleged Will or their effects. Further, it is alleged when the Will in question was purportedly executed the deceased was suffering under undue influence particularly of the First-named Plaintiff who subjected the deceased to undue pressure in making his Will.

Then a series of particulars of the alleged mental and physical incapacity of the deceased and the alleged undue influence are given by the Defendant. These are briefly:

(a) that at the time of making the alleged Will the deceased was aged about 78 years;

(b) because of his old age and infirmity the deceased was unable to look after himself and his memory was very defective and untrustworthy so that he could not understand the nature of his actions in making the Will;

(c) that the First-named Plaintiff was the elder son of the deceased and had unduly influenced the deceased in his affairs and thus was able to control and manoeuvre the deceased in making his Will in the form that the First-named Plaintiff desired;

(d) that the First-named Plaintiff misled the deceased into making his Will;

(e) that the First-named Plaintiff manipulated matters in such a way that the deceased could not resist the suggestions of the First-named Plaintiff to do what the First-named Plaintiff desired.

After these allegations the Defendant then counter-claims that the Court should pronounce against the Will sought to be propounded by the Plaintiffs and that instead the Court should decree Probate of another Will of the deceased said to be dated 16th October 1978.

The Plaintiffs have filed a reply to the Defence and a Defence to the counter-claim but it is not necessary to refer to this for the purposes of this ruling.

Following receipt of the Defence and counter-claim, on 20th March 1990 the Plaintiffs' then former solicitors wrote to the solicitors for the Defendant requesting further and better particulars of the Defendant's statement of Defence and counter-claim and although it would be easy to summarise the general nature of the particulars requested, to understand the law applicable to the present proceedings it is desirable to set them out, which I now do.

"DEFENCE

Paragraph 2

(a) In what respect is it alleged that the will was not duly executed?

(b) Which provisions of the Wills Act are alleged not to have been complied with?

(c) Are any of the matters deposed in the Affidavits of Mohammed Afzal Khan sworn on 8 February 1990 and of Arvind Chand sworn on 1 February 1990 in dispute? If not, are they admitted?

Paragraph 3

(a) In what respect is it alleged the deceased did not know the contents of the will?

(b) In what respect is it alleged the deceased did not approve the contents of the will?

(c) In what manner did that alleged lack of knowledge or approval manifest itself?

Paragraph 4

(a) As at the date of execution of the will:

(i) In what respect is it alleged the deceased was not of sound memory?

(ii) In what respect is it alleged the deceased had any physical impairment such as had any bearing on his testamentary capacity?

(iii) In what respect is it said that the deceased was mentally incapable of managing his affairs as to have any bearing on his testamentary capacity?

(b) In respect of each of questions (a) (i), (ii) and (iii) above with respect to paragraph 4, please furnish specific material facts supporting the Defendant's contention rather than generalised assertions or statements of opinion. In particular:

(i) What is the factual basis for asserting the alleged total loss of memory?

(ii) In what respect is it alleged that the deceased was suffering any condition of mind and memory affecting his testamentary capacity?

(iii) Is the allegation that the deceased was suffering from a condition of mind and memory based upon:

(A) some medical diagnosis?

(B) the opinion of the Defendant?

(C) some other factual matter?

(iv) If the answer to any or more of (A), (B) and (C) above is yes, please furnish details.

Paragraph 5(c)

(a) Please furnish specific instances of the exercise of undue influence by the Firstnamed Plaintiff upon the deceased.

(b) Please furnish particulars of the misrepresentations alleged.

(c) Please furnish details of the false allegations alleged.

(d) What factual matters demonstrate that the Firstnamed Plaintiff controlled or manoeuvred the deceased?

(e) What factual matters demonstrate that the will was in the form that the Firstnamed Plaintiff desired?

Paragraph 5(d)

(a) How is it said the deceased was misled?

(b) Is it alleged that the execution of the will was procured by some fraud or misrepresentation by the Firstnamed Plaintiff?

(c) Is it alleged the deceased did not understand the document executed by him to be his will?

(d) How is it alleged that the deceased was misled by the Firstnamed Plaintiff on the assumption the Defendant does not dispute the matters deposed to by Mohammed Afzal Khan and Arvind Chand?

Paragraph 5(e)

(a) What are the terms of the alleged suggestion by the Firstnamed Plaintiff to the deceased?

(b) When and where was that suggestion made?

(c) What matters is it said that the Firstnamed Plaintiff was able to manipulate?

(d) Is it alleged that the Firstnamed Plaintiff did so manipulate such matters?

(e) If the answer to (d) is yes, what form did that manipulation take place?

(f) Is it alleged that the deceased did in fact agree to whatever the suggestion was?

(g) What was the alleged suggestion?

(h) Please furnish details of the alleged options open to the deceased.

Paragraph 5(f)

(a) Please confirm that what is alleged is that there was no testamentary document.

(b) If so, is that alleged because it is contended the deceased lacked the capacity to form a testamentary intention and carry it out?

(c) Please furnish specific details of all the alleged acts of influence by the Firstnamed Plaintiff towards the deceased on or about the time of execution of the will.

Paragraph 6

(a) In what respect is it denied the contents of the will were as alleged by the Plaintiffs?

(b) What does the defendant say the contents were?"

The Defendant did not comply with this request which caused the Plaintiffs to issue a Summons for Directions on 23rd May 1991 which is now before me and which seeks inter-alia an order that the Defendant serve on the Plaintiffs' solicitors the further and better particulars set out above. The Defendant maintains his refusal to supply the particulars and I have received written submissions from the parties on the questions in issue.

The general principle governing the delivery of further particulars of any pleading is that these will be ordered by the Court if it is considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial. No hard-and-fast line can be laid down as to the degree of particularity which is required of a pleader and which an opponent may demand of him when formulating either a claim or defence.

It is, however, essential that each party should give his opponent a fair outline of the case which will be raised against him at the hearing, and for this purpose he must set out in the body of his pleading all particulars which are necessary to enable his opponent properly to prepare his case for trial.

Particulars need be given only of facts and not of evidence but as much certainty or particularity will be directed in a particular case as is reasonable having regard to the circumstances and the nature of the acts alleged - see Ratcliffe v. Evans [1892] UKLawRpKQB 131; (1892) 2 Q.B. 524, at 532. In Bullen and Leake and Jacob's Precedents of Pleadings 12th Edition the authors remark at p.113 that the tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than previously. However the law has always held against a party to litigation attempting to obtain information by way of particulars which can only be obtained by interrogatories - See Lister & Company Limited v. Thompson (1891) 7 T.L.R. p.107. The practical reason for this rule of practice is that whereas when interrogatories are delivered, the answers must be on oath and various objections to provide the answers such as privilege, oppressiveness and fishing and vexatiousness may be taken by the other party, the same is not true of further particulars. In addition, because answers to interrogatories must be sworn if, when the matter comes to trial the person interrogated when giving evidence appears to resile from or vary his answers to interrogatories, an attack may be made on his credibility.

This is not true of further and better particulars so that a party may obtain an advantage over his opponent if further and better particulars are supplied when they would not necessarily have been if interrogatories had been delivered.

In the present case the Defendant takes this general objection to the Plaintiff's request for particulars. He argues that in the form in which they are drawn the Plaintiff is virtually asking for interrogatories in the guise of asking for particulars and submissions to this effect are made on every request for particulars set out above.

In my opinion most of these objections are valid and I therefore uphold the Defendant's objections with regard to paragraph 2(a) and (c) of the Defence and paragraph 3 of the Defence, commenting that it seems to me all of the particulars sought as framed really seek evidence and not facts.

Likewise I uphold the objections to the particulars sought under paragraph 4 of the Defence. In this regard the particulars requested under paragraph 4(a)(iii) and (b)(iii) are in my view obviously a request for evidence and not facts from the Defendant. As to paragraph 4(b)(iv), in my view "the request" is clearly framed in the form of an interrogatory.

I hasten to add as to all the above objections that if the Plaintiffs re-drafted their request it is quite possible that no objection could either be taken or, if so, sustained. It is not this Court's function to engage in that exercise.

I consider however that the request for particulars under paragraph 5(c) is in order although I would have thought that further detail might have been requested for example as to whether the mis-representations and false allegations alleged were oral, in writing or partly oral and partly in writing depending on the wishes of the pleader. In my own experience when seeking further particulars of a pleading the usual way in which this is done is by words such as "particulars of the facts constituting the alleged mis-representations or false allegations are requested", then stating the details sought.

Under paragraph 5(d) in my view all the particulars sought amount to interrogatories and as such are objectionable for reasons previously stated.

Similarly under paragraph 5(e) as drawn, I consider a similar objection must be sustained in respect of sub-paragraphs (a) to (c). Sub-paragraphs (d) to (g) are clearly in the form of interrogatories and I consider 5(h) to be too vague as to require the Defendant even to supply further particulars.

As to paragraph 5(f)(a) in my view this request is unintelligible and as such need not be answered by the Defendant. Sub-paragraph (b) is clearly an interrogatory and open to the same criticism as the other requests mentioned herein. In my judgment however paragraph 5(f)(c) is in order as a request for further particulars and I consider the Defendant should supply the information requested.

In my judgment the particulars sought under paragraph 6 of the Defence are really interrogatories and thus require no response by the Defendant.

Under Order 76 Rule 9 of the Rules of this Court particulars must be given of any allegation made in a pleading in Probate proceedings that:

(a) the will was unduly executed;

(b) at the time of the execution of the Will the testator was not of sound mind, memory and understanding; and

(c) the execution of the Will was obtained by undue influence.

Thus in my judgment the Plaintiffs are entitled to know full details of the lack of testamentary capacity, undue influence and manipulation of the deceased alleged by the Defendant.

In Re Reynolds (deceased) (1955) 1 All E.R. 18 the Court of Appeal comprising Denning and Morris L.JJ. endorsed the principle of Order 76 Rule 9 and held that details given of the unstable temperament and mental deterioration of the deceased were sufficient. These are set out at p.9 of the report and I will not mention them here. Suffice it to say that no such particulars have yet been supplied by the Defendant and I consider they should be.

That however does not absolve the Plaintiffs from the criticism of the request for further and better particulars made by the Defendant and which, with the exceptions I have stated, I am prepared to uphold. The result is that with the exception of the particulars sought under paragraphs 2(b) and 5(c) and sub-paragraph (c) of paragraph 5(f) I uphold the objections of the Defendant.

As the Plaintiffs have not wholly failed in their application I direct that costs be in the cause.

JOHN E. BYRNE
JUDGE

HBC0010D.89S