Chen v Wu
[2020] NZHC 3302
•14 December 2020
IN THE HIGH COURT OF NEW ZEALAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-485-614075
[2020] NZHC 3302
IN THE MATTER OF the estate of Qinping Ling BETWEEN
YAMU CHEN
Applicant
AND
SHENG YONG WU
Caveator
Hearing: 9 – 13 November 2020, further submissions filed 26 November
and 2 December 2020
Appearances:
N Malarao and J Yao for Applicant J A Wickes for Caveator
Judgment:
14 December 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 14 December 2020 at 3.30pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Meredith Connell, Auckland Loo & Co, Auckland
CHEN v WU [2020] NZHC 3302 [14 December 2020]
Introduction
[1] Qinping Ling died on 1 June 2018. She left a will dated 8 December 2005. She appointed “my father Ling Li Hui” as her executor and trustee and left the residue of her estate, after the payment of all debts and liabilities, for his absolute use and benefit.
[2] This matter is before the Court because Li Hui Ling1 predeceased Qinping.2 As a result of his death, the applicant, Yamu Chen, Li Hui’s widow, applied for letters of administration with will annexed of Qinping’s estate. In a supporting affidavit she deposed that she is Qinping’s adoptive mother and therefore entitled to succeed to Qinping’s estate.
[3] A caveat was lodged by Sheng Yong (“Jimmy”)3 Wu. In his supporting affidavit, Jimmy asserted that Qinping was his sister, and that his late mother, Lan Ying He, and late father, Ming Qun Wu, were Qinping’s birth parents. He denied that Qinping was either raised or adopted by Li Hui and Yamu and asserted that Yamu is not Qinping’s mother, either by blood or by adoption. He claimed that he is the person entitled to apply for letters of administration of Qinping’s estate.
[4] The issue raised by the proceeding can be shortly stated – is Yamu entitled to be granted letters of administration of Qinping’s estate in priority to Jimmy?
Factual background
[5] Before setting out the factual background, it is helpful to record the members of the respective families:
(a)The Ling family:
1 Ling Li Hui was incorrectly named in the will. It was common ground that his correct name is Li Hui Ling.
2 With the agreement of counsel, who had consulted with their clients and their families, the first names of parties, witnesses and others involved are used in this judgment after the party/witness/other person involved has first been referred to. This is because many of the parties/witnesses/others involved are members of the same families and have the same surname.
3 Some of the witnesses had anglicised names. In these cases, I have used the anglicised name, again with the agreement of counsel.
(i)Li Hui Ling (deceased) – husband of Yamu;
(ii)Yamu Chen, the applicant and wife of Li Hui Ling;
(iii)Qinping Ling (deceased);
(iv)Qinfu Ling, son of Li Hui and Yamu (married to Meijuan Luo);
(v)Qinlan Ling, daughter of Li Hui and Yamu; and
(vi)Qinjiao Ling, daughter of Li Hui and Yamu.
(b)The Wu family:
(i)Ming Qun Wu (deceased) – husband of Lan Ying He – Qinping’s natural father;
(ii)Lan Ying He (deceased) – wife of Ming Qun Wu – Qinping’s natural mother;
(iii)Bich Lay Yip, daughter of Ming Qun Wu and Lan Ying He;
(iv)Pau (“Paul”) Ung, son of Ming Qun Wu and Lan Ying He;
(v)Senh Vay (“Sam”) Ung, son of Ming Qun Wu and Lan Ying He;
(vi)Qinping Ling (deceased);
(vii)Bijuan Wu, daughter of Ming Qun Wu and Lan Ying He;
(viii)Sheng Guang Wu, son of Ming Qun Wu and Lan Ying He;
(ix)Biyun Liang, daughter of Ming Qun Wu and Lan Ying He; and
(x)Jimmy Wu – caveator and son of Ming Qun Wu and Lan Ying He.
[6] Both the Ling and the Wu families are of Chinese ethnicity. In the mid to late 1960s, Yamu and Li Hui, as well as Lan Ying and Ming Qun, were living in Vietnam. Yamu and Li Hui lived in a fishing village and worked at a nearby farm. Lan Ying and Ming Qun lived in a nearby town. They had a bicycle shop.
[7] Qinping was born to Lan Ying and Ming Qun in Vietnam, probably in October 1968. I say probably because Jimmy and some of the Wu family members called to give evidence, asserted that Qinping was born in October 1967. There was confusing evidence about how birth dates are calculated in Vietnam. I do not take this issue further. Nothing turns on it.
[8] Yamu gave evidence that she and Li Hui did not initially know the Wu family, but that they were told by a friend that there was a family who wanted to give away one of their children – a daughter. Yamu said that they were introduced through intermediaries and that Qinping was given to her and Li Hui when she was six months’ old. She said that thereafter, Qinping lived with them and was raised by her and Li Hui as a member of their family.
[9] Witnesses for the Wu family asserted that their parents knew Yamu and Li Hui and that they were endeavouring to help them, by allowing them to give Qinping the Ling family surname. They said that this was a tradition, intended to bring luck to a childless couple. They also said that Qinping did not live exclusively with the Ling family. Rather, she lived between the two families, but only once she turned three or four years of age. They said that Qinping spent more time with the Wu family than the Ling family.
[10] Yamu, who is now aged 80 years, strongly denied the assertions made by Jimmy and other members of the Wu family. When she was cross-examined, her answers were detailed, strong and clear. The following answers exchange sums up her position:
Q.Well you will be aware that Jimmy Wu and his brothers and sisters say, that their sister, [Qin] Ping, was given your family’s surname to give you luck, because you couldn’t have children.
A. That’s not the case. That was the biological parent came to me and saying that – Sorry, can I just repeat that? – the biological parents said
that: “We will be giving that daughter away”. And I did ask: “Do you,” “Are you for real? Are you going to be giving to me?” and the biological mother say” “Yeah, if I say so, I will give it to you.”
…
Q. … do you accept that there was the belief in Vietnam, in the 1960s at least, that if a child is given the family name of a childless couple, that will enable the childless couple to have children? What I am asking is whether you accept that there was that belief?
A.Of course I agree with that. They gave it to me to bring up the child and then I have my own child and I’m happier, I’m much happier, I have the children.
…
Q. What I asked you, Ms Chen, was that [Qin] Ping was given the Ling family surname at three or four. She wasn’t given to you at six months, as a baby.
A.It was at six years, ah, months old when they gave it to us and that’s what they say. They say that the: “She will be under your sur – family name. She will be under your family. You will be bringing her up. It will be yours.” People, these people that – who where there at the time are not in this world any more, but that’s what was said.
[11] I prefer the evidence of Yamu in regard to these key issues. She was able to give direct evidence of what occurred. In contrast, Jimmy was not born until 1976. He can have no personal knowledge of what occurred in 1968 or in the years immediately following. There were other members of the Wu family who might arguably have had personal knowledge of what occurred – Bich Lay was born in November 1959, Paul was born in December 1963 and Sam was born in November 1966. Bich Lay did not give evidence at the hearing. Paul did give evidence; so did Sam. In early 1969, when Yamu says that Lan Ying and Ming Qun handed Qinping over to her and Li Hui, Paul would have been five and a half years’ old and Sam, two and a half years’ old. It seems to me inherently unlikely that either now has any real memory of what occurred; rather it seems more likely that, in giving evidence, they were relying on what they have heard from others. Further, I did not consider Paul in particular to be a satisfactory witness. Much of his evidence was either hearsay or opinion evidence. He was dogmatic and very ready to express his views on matters in respect of which he cannot have had any direct knowledge. I gained the distinct impression that he was prepared give whatever evidence he thought might assist the Wu family cause. I have given very little weight to his evidence. In contrast, Yamu
gave her evidence without any apparent guile or artifice. Despite her age, she appeared to have a clear memory of all relevant events and she was prepared to make appropriate concessions.
[12] It is also noteworthy that Yamu’s version of events is borne out by a letter Qinping wrote in early 2001 when she sponsored an application by Qinfu Ling, to come to New Zealand under the humanitarian category. The letter formed part of a larger letter sent by the solicitor acting on the immigration application. The solicitor’s letter was dated 8 February 2001. In her letter she said that she was born into a poor farmers’ family in northern Vietnam. She said that her parents were both of Chinese origin and that they lived in Vietnam for some time. She said that she was the oldest child in the family and that she had a younger brother and two younger sisters. She went on to say that her memory about Vietnam consisted of poor living conditions, hardworking parents and an early emotional bond with her brother, who was born when she was three and a half years old. She described her experiences with him when he was a baby. It is noteworthy that, in this letter, she does not mention the Wu family at all.
[13] It is common ground that both families, as ethnic Chinese, faced persecution in Vietnam in the late 1970’s. Both families fled separately from Vietnam to China, as refugees, in 1978. Qinping fled with the Ling family and the Ling family was relocated to Guangxi province in China. They were resettled on a pineapple farm in Long’an County. The farm had been established by the Chinese Government to accommodate ethnic Chinese who were returning to China having been forced out of other countries in South East Asia. The Wu family were relocated to another province in China, Guangdong.
[14] Various witnesses for the Wu family asserted that Qinping was taken to China “secretively” by Yamu and Li Hui, and without Lan Ying’s and Ming Qun’s consent. Again, in part, this evidence was based on hearsay, based on what various Wu family members claimed to have been told by others. The allegation was not put to Yamu. Nor was it put to Qinfu, who was born in 1972, and would have been aged six when the Ling family fled from Vietnam to China. Paul’s evidence was that, while his parents, Lan Ying and Ming Qun, were unhappy with what he and other family
members say occurred, they did not take issue with Qinping’s situation; they did not raise it with the authorities or do anything else about it. If the allegation is true, inaction seems inherently unlikely. Again, I reject this aspect of the Wu family’s evidence.
[15] The evidence did suggest that Qinping made contact with the Wu family, probably some time in the early 1980s, and that as a result, Ming Qun and Sam visited the Ling family in Guangxi province in 1984. While the Ling family witnesses did not recall any such visit, it was Sam’s evidence that an agreement was then reached between Li Hui and Ming Qun, as the respective heads of the two families, and that as a result, Qinping stayed with the Ling family to be raised and cared for by that family. It seems likely that there was such a visit and I accept Sam’s evidence in this regard. In any event, it is common ground that Qinping stayed with and remained a member of the Ling family until she eventually left China in 1989.
[16] Qinping went to both primary and secondary schools set up by the Chinese Government for returning ethnic Chinese. There was an issue as to whether or not Lan Ying He and Ming Qun Wu contributed to the cost of her schooling, but not much turns on this.
[17] Wu family members also say that Qinping visited them in Guangdong province on two occasions – once in 1986 and again in 1987. Witnesses for the Ling family could not remember whether or not this happened, but it was Yamu’s evidence that Qinping was free to visit the Wu family if she wanted to do so. Photos were produced showing Qinping with members of the Wu family, seemingly in China, and I accept that it is likely that she visited her natural parents and other members of the Wu family on occasion, probably in the years mentioned in evidence.
[18] It is noteworthy that Qinping obtained a resident identity card in China in October 1987. The card recorded her date of birth as 11 October 1968. It gave the Lings’ address in Guangxi as her home address.
[19] In 1988, Qinping started working at a local cannery in Guangxi province. She then trained as a chef.
[20] In April 1989, Qinping came to this country on a visitor’s visa. She was 21 years old. Paul gave evidence that he paid for her ticket. There is nothing to corroborate this assertion but it seems clear that Paul and his elder sister Bich Lay, were resident in this country, having immigrated here in 1980. The evidence suggested that Paul and Bich Lay supported Qinping when she arrived in New Zealand. Paul said that Qinping initially lived with him, before moving to Turangi to work at a restaurant either owned or managed by Bich Lay. At some stage Sam also emigrated to New Zealand and Qinping lived with him in Auckland for a period as well. She also spent a year living and working in Kaikohe.
[21] In June 1990, the Long’an County Public Security Bureau in Guangxi issued a hukou (a household registration certificate) for the Ling family. Li Hui was described as the head of the household and Qinping as the “eldest daughter”.
[22] In 1991, Lan Ying and Ming Qun moved to New Zealand, under the family reunification provisions. Although the evidence was a little confused, it seems that at this point, Qinping was living with Sam in a property he owned in Mt Roskill.
[23] In November 1992, Qinping obtained New Zealand residency. It was Paul’s evidence that he sponsored her application.
[24] In November 1995, Qinping married Shi-lin Zhong. In the same year, she was diagnosed with an auto-immune disease, and she started receiving treatment. Also in 1995, two further members of the Wu family, Bijuan and Sheng Guang, emigrated to New Zealand.
[25] In 1997, Qinping travelled back to China to receive traditional Chinese medical treatment for her condition. While she was in China, she stayed with the Ling family and, on a trip to Shanghai, she was accompanied by Qinfu.
[26] In 1999, Qinping and her husband – Shi-Lin – purchased a property in Ballater Place, Highland Park, Auckland. Yamu gave evidence that she and Li Hui helped Qinping and Shi-Lin with the purchase, contributing funds by selling their house in
China. Although this was disputed by members of the Wu family who gave evidence, their evidence was based on speculation. I accept Yamu’s evidence.
[27] Because of her deteriorating condition, and because her marriage was not particularly happy, Qinping wanted family support, in particular from Qinfu, who she was very close to. She persuaded him to move to New Zealand to join her. On 8 February 2001, Qinping wrote the letter to the New Zealand Immigration Service in support of Qinfu’s application for New Zealand residency which I have already referred to.
[28] On 19 February 2001, the Notary Public Office in Nanning Prefecture in the Guangxi Zhwang Autonomous Region in China, issued a notarised relationship certificate for Qinfu. It certified that Qinfu is the son of Li Hui and Yamu, the younger brother of Qinping, and the elder brother of Qinlan and Qinjiao.
[29] On 6 April 2001, Qinfu applied for New Zealand residency under the humanitarian category. He was sponsored by Qinping.
[30] On 19 August 2002, Qinping and Shi-Lin separated, and Shi-Lin moved out of the Ballater Place property. He transferred his share in the property to Qinping. Their marriage was ultimately dissolved in August 2009.
[31] On 23 February 2003, Qinfu’s New Zealand residency application was approved. He moved to New Zealand. He was picked up at Auckland airport by Jimmy because Qinping was too ill to collect him. He moved into the Ballater Place property with Qinping. Thereafter, he attended to her daily needs and did household chores, such as cooking, cleaning, shopping and the like. Also in 2003, in October, Yamu, Li Hui and their youngest daughter, Qinjiao, applied for New Zealand residency under the family reunification category. They were also sponsored by Qinping.
[32] In 2004, Qinping and Qinfu returned to Guangxi province in China to visit the members of the Ling family still in that country.
[33] In 2005, Yamu, Li Hui and Qinjiao’s New Zealand residency applications were approved. They moved to New Zealand and moved into the Ballater Place property with Qinping and Qinfu.
[34] In November 2005, another member of the Ling family – Qinlan– applied for New Zealand residency under the family sibling category. She was also sponsored by Qinping.
[35] On 8 December 2005, Qinping executed her will, appointing “my father [Ling] Li Hui” as her executor and as the sole beneficiary of her estate. One of the witnesses to her execution of the will was her close friend, Wai Yee Yun.
[36] In 2007, the various members of the Ling family, most of whom were in this country, combined their resources and spent approximately $35,000 to $40,000 renovating and extending the Ballater Place property and increasing its size so that it was large enough to accommodate all of them.
[37] Also in 2007, Qinlan’s application for New Zealand residency was approved. She moved to New Zealand with her husband and son. They moved into a house at Bucklands Beach in Auckland. Qinjiao moved out of Qinping’s Ballater Place property and went to live with Qinlan and her family.
[38] In late 2007, Qinfu bought a house next to Qinping’s Ballater Place property. Qinlan, her husband, their son and Qinjiao, moved into this property so that they could be closer to Qinping and help look after her. Qinfu and his wife, Meijuan, as well as Yamu and Li Hui, continued to live with Qinping in the Ballater Place property. The various Ling family members looked after Qinping as her health continued to deteriorate.
[39]On 6 November 2010, Li Hui died.
[40] In 2012, Qinfu, Meijuan, their children and Yamu moved into a house five minutes’ drive from the Ballater Place property.
[41] In January 2018, Qinping had a fall at home and broke her leg. Thereafter Meijuan assisted Qinping on a day-to-day basis. Amongst other things, she made withdrawals from Qinping’s bank account in order to make the repayments due under the mortgage over the Ballater Place property.
[42] In June 2018, Qinping had a stroke while attending a funeral. She was admitted to hospital. There was conflicting evidence about what happened thereafter. It was Qinfu’s evidence, that he, in consultation with his sisters, Qinlan and Qinjiao, gave the final instruction to the doctors to turn off Qinping’s life support. Jimmy asserted that he gave the final instruction. For the reasons which follow, I prefer Qinfu’s evidence in this regard.
[43] Qinping died in hospital on 1 June 2018. Her funeral service was held on 6 June 2018. It was organised by Qinfu and Meijuan and they paid for the burial plot, for the coffin and for all related funeral expenses. Given that Qinfu and Meijuan made all of the arrangements for, and met the costs of, Qinping’s funeral, it seems to me more probable than not that it was Qinfu and his sisters who gave the final authority to the medical professionals to turn off Qinping’s life support system. I reject Jimmy’s evidence in this regard.
[44] Since Qinping’s death, Qinfu and Meijuan have met all of the various payments due in respect of the Ballater Place property from their joint account. They have paid approximately $28,000 in mortgage repayments and $6,208 in rates. No contribution has been made by any member of the Wu family to these costs. Qinfu and Meijuan have also looked after the property, attending to gardening and maintenance and the like. Jimmy’s actions in lodging the caveat have meant that the Ballater Place property has remained vacant. The parties could not agree on the appointment of an interim administrator to take out letters of administration.
[45] It is noteworthy that all available documents (and there are not many) confirm that Qinping was a member of the Ling family. I note the following:
(a)Qinping’s resident identity card issued in China in October 1987 gave the Ling’s address in Guangxi as her home address;
(b)the hukou issued in China in June 1990, recorded that Qinping was the eldest daughter of Li Hui and Yamu;
(c)the letter written by Qinping in early 2001 to Immigration New Zealand referred to the Ling family, to Li Hui and Yamu as being her parents, and to Qinfu as being her brother. It made no mention of the Wu family or to any member of that family;
(d)the notarial certificate issued to Qinfu in China on 19 February certified that he is the son of Li Hui and Yamu, the younger brother of Qinping, and the elder brother of Qinlan and Qinjiao;
(e)in her will, Qinping referred to Li Hui as being her father;
(f)Qinping’s marriage certificate recorded that her mother was Yamu and her father Li Hui;
(g)Qinping’s death certificate recorded that her mother was Yamu and her father Li Hui;
(h)various papers prepared by Immigration New Zealand, recorded the Ling family relationships. For example, there is a client information memorandum for Qinjiao. It records that Qinping was Qinjiao’s sister. The same information is given in a client information memorandum prepared for Qinlan. Various other immigration records refer to Qinping and record that Yamu was her mother, Li Hui her father, and that other members of the Ling family were her brothers/sisters as the case may be.
[46] In recording this background narrative, I have generally preferred the evidence given by members of the Ling family. That is because I considered the various witnesses called by Yamu generally to be reliable and truthful witnesses.
[47] In contrast, I had very real concerns about the evidence given by many members of the Wu family. I note the following:
(a)There were similarities in their briefs of evidence; indeed some passages in the briefs were identical. The witnesses were cross- examined on these similarities. Their answers were unsatisfactory. With the exception of Bijuan, the witnesses asserted that they had written their briefs of evidence themselves and that they had not got together in preparing their evidence. It defies logic to accept that witness after witness would independently use identical language in their briefs of evidence, and I do not accept the evidence in this regard. Ultimately Bijuan accepted that the Wu family siblings had “lined up [their] stories”. In re-examination, Bijuan claimed that she did not really understand what was meant by “lined up their stories”. I do not accept this answer either. In my view, it was patently obvious that the various Wu family members had got together, to make sure that their evidence aligned.
(b)Some of the witnesses, in particular Paul, gave evidence to try and repair potentially damaging answers given by witnesses who had already given evidence. For example, I asked Jimmy whether he was seeking to become the administrator of Qinping’s estate, so that he could succeed to the property at Ballater Place. He responded that his intention was:
… not for the house, my intention was those people who’s greedy about money. Because I feel that the house is not belong to Ling family, so they could not administrate that house.
I then asked him whether the Wu family had made any contribution to the house. He answered:
No.
When I put it to him that it might be suggested that he was trying to secure a property to which he and the Wu family have made no contribution, he responded:
We only know that this house belongs to my elder sister, so it should not be administered by Ling family.
That was the end of this narrative. Strangely, at the conclusion of his evidence, Paul volunteered the following:
And can I say a couple of words? We came today not because for we want (inaudible). Because this is in New Zealand I live here 40 years. We want this to help the people in need, and we don’t want this for ourself. We want it charity. We live in New Zealand, we like to give – …
This comment by Paul was unprompted. It was not in response to any question put to him. I gained the distinct impression that he was trying to cover off the matters that I had earlier put to Jimmy. The evidence was offered notwithstanding that an order had been made excluding witnesses.
[48] In my judgment, the truthfulness and reliability of the evidence given by members of the Wu family was highly questionable. The circumstances strongly suggested to me that there was an unsatisfactory degree of liaison between those members of the Wu family who gave evidence before me. I gained the impression that family solidarity was considered to be more important than the truth.
[49] There was also a very large amount of inadmissible hearsay evidence given by members of the Wu family. Most witnesses for the Wu family, under cross- examination, had to accept that many of the statements made in their respective briefs of evidence were based on what others had told them. Similarly, and as I have already noted, Paul in particular was very ready to give opinion evidence on a large range of matters, some of which he simply cannot have been in a position to comment on.
[50]I have no hesitation in finding, on the balance of probabilities, that:
(a)Qinping was handed over by her birth parents, Ming Qun and Lan Ying, to Yamu and Li Hui when she was about six months old;
(b)Yamu and Li Hui brought Qinping up and raised her as a member of the Ling family when they were in Vietnam;
(c)Yamu and Li Hui brought Qinping up and raised her as a member of the Ling family after the family fled Vietnam and went to China;
(d)Qinping was recognised by all Ling family members as being a member of the Ling family; and
(e)Qinping considered herself to be a member of the Ling family and not the Wu family.
Letters of administration – priority
[51] Section 5 of the Administration Act 1969 provides that the Court has jurisdiction and authority in relation to the granting and revoking of letters of administration both with or without will annexed of the estates of deceased persons.4 The grant of letters of administration is a judicial act.5
[52] In granting letters of administration, either with or without will annexed, the Court must consider the rights of all persons interested in the estate of the deceased or the proceeds of the sale of the deceased’s estate. Administration with will annexed may be granted to a devisee or legatee; any such administration can be limited in any way the Court thinks fit. Where a person dies wholly intestate as to his or her estate, administration is required to be granted to one or more of the persons beneficially interested in the estate of the deceased, if they make application.6
[53] The High Court Rules provide that the Court can grant letters of administration with will annexed to the person entitled according to r 27.26.7 That rule provides as follows:
27.26 Priority of potential administrators for purposes of rule 27.25
(1)The first in priority is a residuary beneficiary holding in trust for any other person.
(2)The second in priority is a residuary beneficiary for life.
4 Administration Act 1969, s 5(1).
5 Hewson v Shelley [1914] 2 Ch 13.
6 Administration Act 1969, s 6(1).
7 Rule 27.25(4).
(3)The third in priority is,—
(a)if the will disposes of the whole residue, the ultimate residuary beneficiary; or
(b)if the will does not dispose of the whole residue but the court is satisfied that it disposes of the whole or substantially the whole of the estate as ascertained by the time the application for the grant is made,—
(i)a beneficiary entitled to the estate; or
(ii)a beneficiary entitled to a share in the estate; or
(c)if the will does not dispose of the whole residue and the court is not satisfied that it disposes of the whole or substantially the whole of the estate as ascertained by the time the application for the grant is made,—
(i)a person entitled to a share in the residue not disposed of or the person’s personal representative; or
(ii)the Attorney-General, if entitled to claim the residue as bona vacantia on behalf of the Crown.
(4)The fourth in priority is—
(a)a specific beneficiary or the beneficiary’s personal representative; or
(b)a creditor or the creditor’s personal representative; or
(c)if the will does not dispose of the whole estate, a person who has no immediate beneficial interest in the estate because of its small amount but may have a beneficial interest if the estate increases.
(5)The fifth in priority is a specific or residuary beneficiary who is entitled on the happening of a contingency.
(6)The sixth in priority is a person who—
(a)has no interest under the will; and
(b)would be entitled to a grant if the deceased had died wholly intestate.
(7)Persons who are third, fourth, or fifth in priority, and are entitled to the grant, are entitled to the grant in order of priority in their class according to the value of their interests or the amounts of their debts.
[54] Mr Malarao, for the applicant, argued that Yamu is sixth in priority, pursuant to r 27.26(6). The application made by her proceeds on this basis. Ms Wickes, for Jimmy, argued that Qinping died intestate and that r 26.6 contains two cumulative
requirements and that r 26.6(b) requires the Court to go on and consider r 27.35, which sets out the order of priority for the grant of letters of administration in situations where there is an intestacy.
[55]Relevantly, r 27.35 provides as follows:
27.35 Order of priority for grant in case of intestacy
(1) If a person has died wholly intestate, the right to apply for letters of administration of that person’s estate is determined in accordance with the order of priority set out in subclause (3).
…
(3)The order referred to in subclause (1) is as follows:
(a)the first in priority is persons having a beneficial interest in the estate, according to the order of priority set out in subclause (4):
…
(4)Persons having a beneficial interest in the estate are entitled to a grant of administration in the following order of priority:
(a)the surviving spouse or civil union partner or de facto partner entitled to succeed on the intestacy, if paragraph (b) does not apply and his or her beneficial interest in the estate is not affected,—
(i)in the case of a surviving spouse, by section 12(2) of the Matrimonial Proceedings Act 1963 (as applied by section 191(3) of the Family Proceedings Act 1980); or
(ii)in the case of a surviving spouse or a surviving civil union partner, by section 26(1) of the Family Proceedings Act 1980; or
(iii)in the case of a surviving de facto partner, by section 77B of the Administration Act 1969; or
(iv)in every case, by the choice of option A under section 61 of the Property (Relationships) Act 1976:
(b)in a case of the kind referred to in section 77C of the Administration Act 1969 (succession on intestacy if intestate dies leaving a spouse or a civil union partner and 1 or more de facto partners, or 2 or more de facto partners), a surviving spouse, surviving civil union partner, or surviving de facto partner entitled to succeed on the intestacy, if his or her
beneficial interest in the estate is not affected in any of the ways stated in paragraph (a)(i) to (iv):
(c)the children of the deceased (including any persons entitled by virtue of the Legitimation Act 1939 or the Status of Children Act 1969) or, failing them, the issue of a child who has died during the lifetime of the deceased:
(d)the parent or parents of the deceased:
(e)brothers and sisters of full or half blood, or, failing them, the issue of any such brother or sister who has died during the lifetime of the deceased:
(f)grandparents:
(g)uncles and aunts of full or half blood, or failing them, the issue of an uncle or aunt who has died during the lifetime of the deceased.
(5)The personal representative of a person in any of the classes referred to in subclause (4) or the personal representative of a creditor has the same right to a grant as the person represented.
(6)The Adoption Act 1955 applies in determining entitlement to a grant in the same way that it applies to devolution of property on intestacy.
(7)If a person has died partially intestate, that is, his or her will has disposed of some but not all of that person’s assets, the court must make a single grant of administration for the whole of the estate. The executor, or executors, named in the will has priority in applying for that grant, but otherwise rule 27.26 applies.
[56] Yamu has deposed, and it is not disputed, that Qinping was not survived by a spouse, civil union partner or de facto partner, and that she had no children. It follows that, if r 27.35 applies, priority is accorded first to any surviving parent or parents and, if there is no such parent, then to her brothers and sisters of full or half blood.
Did Qinping Ling die intestate?
[57] As noted, Qinping left her residuary estate, after the payment of debts, funeral expenses and the like, to Li Hui. There was no provision for substitution in the event that Li Hui predeceased her.
[58] A will is ambulatory and is of no effect until the will-maker dies. Normally, where a testator dies, and the person named as a beneficiary is already dead, that person’s estate receives no benefit from the will. Any interest he or she would have
received had they survived the will-maker lapses and the testamentary gift fails. Where a gift, other than a gift of the residue lapses, the property which is the subject of the gift falls into the residue; where a gift of the residue lapses, the property devolves as on an intestacy.8
[59] There are exceptions to these general rules and Mr Malarao sought to persuade me there is an available exception in the present case.
[60] There is authority suggesting that there will be no lapse, if the gift made in the will is intended to discharge a moral obligation recognised by the will-maker and that moral obligation existed at the date of death. In Stevens v King,9 the testatrix owed her brother a sum of money which she had received as an overpayment from their father’s estate. The overpayment had been quantified and recognised in a Court order. The testatrix bequeathed the exact sum overpaid to her brother in her will and expressly referred to the Court order. The brother predeceased the testatrix but the Court held that the gift should nevertheless go to the brother’s estate, given the clear intention in the will that the gift was intended to discharge the pre-existing obligation to reimburse the overpayment. Farwell J stated as follows:10
I think that the cases …have established the rule that, if the Court finds, upon the construction of the will, that the testator clearly intended not to give a mere bounty to the legatee, but to discharge what he regarded as a moral obligation, whether it were legally binding or not, and if that obligation still exists at the testator’s death, there is no necessary failure of the testator’s object merely because the legatee dies in his lifetime; and therefore death in such a case does not cause a lapse.
[61] Counsel were unable to refer me to any authority where this exception has been recognised in New Zealand,11 and commentators in this country have suggested that the extent of the exception is uncertain.12
[62] It is not necessary for me to determine whether this exception applies in New Zealand because, on the facts, it cannot apply in this case.
8 Re Pugh’s Will Trusts [1967] 1 WLR 1262 (Ch) at 1267. And see Lindsay Breach (ed) Nevill’s Law of Trusts, Wills and Administration (13th ed, LexisNexis, Wellington, 2018) at [15.7.2].
9 Stevens v King [1904] 2 Ch 30.
10 At 33; And see In Re Leach, Chatterton v Leach [1948] Ch 232.
11 But see Wills Act 2007, s 23.
12 Nevill’s Law of Trusts, Wills and Administration, above n 8, at [15.7.2].
[63] The main asset of Qinping’s estate is the house situated in Ballater Place. It was purchased in 1999 by Qinping and her then-husband – Shi-Lin Zhang. There is evidence that Yamu and Li Hui provided some funding to Qinping to help her (and her then-husband) pay the deposit on the property. There is also evidence that members of the Ling family – including Li Hui – provided financial assistance to assist in funding renovations and extensions which were undertaken at a later date. There is no evidence as to the value of the contribution made to the purchase by Yamu and Li Hui. The evidence suggested that Li Hui and other members of the Ling family contributed “[$]35,000 to [$]40,000 … all together” to the renovations. Regardless of the quantum of the contributions, they were not all from Li Hui and the net value of the house must have been much more than Li Hui contributed. Further, there is nothing in the evidence or in Qinping’s will suggesting that she recognised that she was under any moral obligation to Li Hui. The solicitor who prepared the will was not called as a witness. One of Qinping’s close friends, Wai Yee Yun, was a witness to the execution of the will. She gave evidence. She could not however remember the detail of any discussions she had with Qinping about her will. The exception discussed in in Stevens v King cannot apply on the facts in this case, even assuming that that exception applies in New Zealand law.
[64] In my view, Qinping’s will lapsed and she died intestate. As a result, s 77 of the Administration Act is engaged. It governs succession on an intestacy. Here both Yamu (assuming she is Qinping’s mother) and Jimmy can claim a beneficial interest in Qinping’s estate under s 77 – Yamu as a parent under category 5 and Jimmy (and his various siblings) as a brother under category 6. Yamu, if she is Qinping’s mother, has priority over Jimmy.
[65] Because Qinping died intestate, it also follows that, pursuant to r 27.6(6), the rules as to priority set out in r 27.35(3) and (4) apply. Those rules reflect the succession provisions contained in s 77.
Is Yamu the mother of Qinping?
[66] It was Mr Malarao’s submission that the word “parent”, used in the Administration Act and in the High Court Rules is an ordinary English word, which
should be given its ordinary English meaning. He cited from various dictionaries and argued that a person who holds the position of a parent or who exercises the functions of a parent, protector or guardian, falls within that ordinary and plain meaning. He argued that, on the evidence, Yamu is Qinping’s parent.
[67] Mis Wickes argued that the word “parent” used in the Administration Act and in the High Court Rules refers only to a birth parent or an adoptive parent. She argued that any other interpretation would open the floodgates for persons claiming to have exercised a parental role.
[68] In considering this issue, the starting point must be s 5 of the Interpretation Act 1999. It requires that the meaning of an enactment must be ascertained from its text and in the light of its purpose. Reference to dictionaries can be appropriate.13
[69] The word “parent” is an ordinary English word. It is not defined in either the Administration Act or in the High Court Rules. The Shorter Oxford English Dictionary gives the word “parent” the following meaning:14
A person who has fathered or given birth to a child; a biological father or mother; a person who holds the position or exercises the functions of such a parent, a protector, a guardian …
(emphasis added)
The New Zealand Oxford Dictionary gives the word “parent” the following meaning:
A person who has begotten or born offspring; a father or mother. A person who has adopted a child …
The same dictionary defines a mother as follows:15
(a) a woman in relation to a child or children to who she has given birth. (b) (In full adoptive mother) a woman who has continuous care of a child, esp. by adoption …
13 Transpower New Zealand Ltd v Commerce Commission HC Wellington CIV-2011-485-1032, 4 November 2011 at [17]; Grant v McDermott [2014] 2 NZLR 696.
14 Shorter Oxford English Dictionary on Historical Principles (6th ed, Oxford University Press, Oxford, 2007) at 2010.
15 Tony Deverson and Graeme Kennedy (eds) New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 823.
[70] I have found that Yamu and Li Hui held the position of Qinping’s parents, and that they exercised parental functions in relation to Qinping. They had the continuous care of Qinping from the time when she was six months old until she grew up, left home and then emigrated to New Zealand. Yamu is Qinping’s sole surviving parent, if the plain meaning of the word “parent” applies to s 77 of the Administration Act and to the High Court Rules.
[71] The apparently plain meaning of the word “parent” has to be cross-checked against purpose. It is trite law that the ordinary meaning of a word can be displaced by the purpose of the provision in question and/or by wider contextual factors.16
[72] The purpose of the Administration Act is to consolidate and amend certain enactments relating to the estates of deceased persons. This does not assist. The objective of the High Court Rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application coming before the High Court – r 1.2. Again, this does not assist.
[73]Turning to contextual factors, I note the following:
(a)There is nothing in s 77 of the Administration Act (or in the High Court Rules) which directly suggests that the word “parent” used in category 5 is limited to persons who have either fathered or given birth to a deceased child. In contrast, category 6 refers to brothers or sisters, whether of full or half blood. It would have a been a relatively easy task for the legislature to have limited the word parent in category 5 to natural and adoptive parents. It has not expressly done so.
(b)The meaning of the word “parent” is extended by the Adoption Act 1955. An adopted child is deemed in law to become the child of the adoptive parent or parents, as if the child had been born in lawful wedlock.17
16 Commerce Commission v Fonterra Cooperative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].
17 Adoption Act 1955, s 16.
(c)There is no express reference in the Administration Act to the Adoption Act but there does not need to be. Rule 27.35(6) states that the Adoption Act applies in determining entitlement to a grant of letters of administration in the same way that it applies to the devolution of property on intestacy.18
(d)The word “issue” is used in s 77. So are the words “brothers or sisters”. It has been held that the word “issue” (and the words “children or child of the intestate” used in s 78(1)(a)), refers to offspring of the intestate
– that is the intestate must have either fathered or given birth to the child.19 Absent adoption, the treatment of a child as a member of a family will not give the child priority equal to natural born or adopted children.20
(e)A customary or whāngai adoption, in accordance with the principles of tikanga, is of no force or effect, whether in respect of succession to Maori land or otherwise.21
[74] While Mr Malarao’s argument has the advantage of simplicity, in my view, that simplicity is delusive. Taking into account the contextual factors I have mentioned, and acknowledging the “floodgates” argument advanced by Ms Wickes, it seems to me to be strongly arguable that the word “parent” used in s 77 of the Administration Act and in r 27.35(4) of the High Court Rules, means a birth or adoptive parent. However, I do not deal with the matter on this basis. I prefer to leave the argument for a more appropriate case. That is because there is a more direct route to determining who has priority in the present case. I now go on to consider whether or not Qinping
18 Mr Malarao argued that this provision relates only to s 16(2)(d) of the Adoption Act. I do not accept that argument. Section 16 of the Adoption Act deals with the effect of an adoption order. Broadly, the adopted child becomes the child of the adoptive parent, and ceases to be the child of its existing parent. It is these provisions which confer rights on an intestacy. Section 16(2)(d) simply confines their operation in the circumstances there set out.
19 See Keelan v Peach [2002] NZFLR 481 (HC) at [14]-[15], interpreting the words “the children of the deceased” used in the Family Protection Act 1955; upheld on appeal – Keelan v Peach [2003] 1 NZLR 589, [2003] NZFLR 64 (CA); The Court of Appeal’s reasoning is noted without adverse comment by the Supreme Court in Wood-Luxford v Wood [2013] NZSC 153; [2014] 1 NZLR 451; And see Mulder v Heke [2016] NZHC 552; Rameka v Wikatene (2008) 27 FRNZ 149 (HC) at [71]-[80].
20 Beazley v Tauariki [2015] NZHC 116.
21 Adoption Act 1955, s 19(1); And see Mulder v Heke and Keelan v Peach, above n 19.
was adopted overseas by Li Hui and Yamu, and whether any adoption in China should be recognised in New Zealand.
Was Yamu Qinping’s adoptive mother?
[75]Section 17 of the Adoption Act provides as follows:
17 Effect of overseas adoption
(1)Where a person has been adopted (whether before or after the commencement of this section) in any place outside New Zealand according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all other New Zealand enactments and laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect.
(2)Subsection (1) shall apply to an adoption in any place outside New Zealand, if,—
(a)the adoption is legally valid according to the law of that place; and
(b)in consequence of the adoption, the adoptive parents or any adoptive parent had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that place, a right superior to that of any natural parent of the adopted person in respect of the role of providing day-to-day care for the person; and
(c)either—
…
(ii)in consequence of the adoption, the adoptive parents or any adoptive parent had, immediately following the adoption, according to the law of that place, a right superior to or equal with that of any natural parent in respect of any property of the adopted person which was capable of passing to the parents or any parent of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place—
but not otherwise.
(2A) The production of a document purporting to be the original or a certified copy of an order or record of adoption made by a court or a judicial or public authority in any place outside New Zealand shall, in the absence of proof to the contrary, be sufficient evidence that the
adoption was made and that it is legally valid according to the law of that place.
…
[76] The section is in very broad terms. It was considered by Heath J in Cheon v Attorney General.22 The issue there before the Court was whether the adoption of the two children, in accordance with the law of Korea, ought to be recognised as having the same effect as adoption orders made in New Zealand. The Judge distilled s 17 as follows:
(a)was the adoption valid under the laws of the foreign country? – s 17(2)(a);
(b)did the adoptive parents, under the laws of the foreign country, have a right, superior to that of the natural parents, in providing for the day-to- day care of the adopted person? – s 17(2)(b); and
(c)did the adoptive parents, under the laws of the foreign country, have a right superior to or equal with that of the natural parents, in respect of the property of the adopted person which was capable of passing to the parents or any natural parent on an intestacy without other next of kin?
– s 17(2)(c)(ii).
I agree with and adopt this analysis.
[77] I heard no evidence relating to adoption in Vietnam. I do not however consider that this is fatal. A de facto adoption can be later formalised by the making of an adoption order. Here, the evidence is that the adoption of Qinping was formalised in China, and that the adoption was valid under Chinese law.
[78] I heard evidence from an expert, Mu He about Chinese adoption law. Ms He is of Chinese ethnicity. She has a Master of Laws from Peking University, and she passed the national judicial examination in 2007. She has practised law in China for
22 Cheon v Attorney General HC Auckland CIV-2007-404-7669, 8 July 2008.
nine years. She also has two years’ experience working in New Zealand law firms. She provided evidence about Chinese law, insofar as it relates to domestic adoptions in China. Her evidence was admissible pursuant to s 144 of the Evidence Act 2006.
[79] Ms He gave evidence of adoption practices in China from the late 1970’s. She said that:
(a)In the late 1970’s, China was still in the late years of the cultural revolution. During this time, the Chinese Courts did not regularly sit to hear cases and the only relevant provisions were simple marriage laws, which had been enacted in 1950. There were no provisions relating to adoption in these marriage laws.
(b)Due to poor literacy levels in China at the time, many Chinese made oral agreements, in relation to marriage and for adoption. The Chinese Government had no system for recording these oral agreements.
(c)The Courts in China recognised and upheld “factual adoptions”. A factual adoption arises where the adopted child has been taken in, and is living with and being cared for, by his or her adoptive parents. Where there has been an oral agreement for the adoption of a child between the birth parents and the adoptive parents, the Chinese Courts will recognise and protect the adoption relationship if there is evidence that the child was living with and being cared for by the adoptive parents.
(d)In 1984, the Supreme Peoples’ Court, being the highest Court in China, declared the law in China in relation to adoption by publishing an opinion. The opinion included the following:
If relatives, friends or the masses accept, or if relevant organisations prove the adoptive parents and adopted children have lived together for a long time, even if they have not completed the legal procedures, they should also be treated as having an adoptive relationship.
(e)Chinese Courts recognise factual adoptions as being legally valid in China.
[80] I have already set out my findings above. I have accepted Yamu’s evidence that Qinping started living with her and Li Hui and that she was cared for and brought up by them from when she was six months old. I have accepted that Yamu performed the role of Qinping’s mother/parent. It follows that there was a factual adoption of Qinping by Yamu and Li Hui. On Ms He’s evidence, this factual adoption would be accepted as a valid legal adoption under Chinese law. While that adoption has not been effected by Court order, there is no such requirement in s 17. In my view, there was a factual adoption of Qinping and, on Ms He’s evidence, it appears that this factual adoption is legally valid under the laws of China.
[81] Ms He, and other witnesses, gave evidence that the hukou is an important document in China. It is accepted as evidencing family relationships. Ms He said that, if a person is registered in a hukou, that person will be recognised by the Chinese Courts as having a family relationship with the other persons registered in the hukou. During the cultural revolution, many families in China did not have a hukou, but from the 1980’s, the Chinese Government started to require that families register themselves in a hukou. When the marriage laws in China were enacted in 1980, the Chinese Government recognised factual adoptions by registering the relationships set out in a hukou. After 1991, and once the adoption laws of China had been enacted, the Chinese Government required written adoption agreements between adoptive parents and birth parents, and required both sets of parents to register the change of relationship of the adopted child on their hukou. If an adopted child is registered in a hukou of the adoptive family, that is accepted as sufficient evidence that the adopted child is the legal child of the adoptive parents. However, even if the adoptive parents did not update their hukou to record that the adopted child is part of their family, the Chinese Courts will nevertheless recognise and protect a factual adoption.
[82] The original of the Ling family hukou was produced at the hearing. On Ms He’s evidence, Qinping’s factual adoption was validated by the recording of Qinping as the eldest daughter of Yamu and Li Hui in the hukou of the Ling family. On the evidence, the registering of Qinping in the Ling family’s hukou is sufficient record that Qinping’s adoption by Yamu and Li Hui is legally valid in China. Ms Wickes put it to Ms He that whether or not a child has been adopted is a factual matter, and that it is
not the entry of the child into the hukou that perfects the adoption. Ms He accepted this. She went on to say as follows:
Yes, you’re right, in the explanation of the adoption laws by the Supreme Court in 1979, it actually stated that the adoptive relationship is based on the factual evidence provided by the people. If this are the factual evidence, then the Court would accept this adoptions relationship.
[83] Ms He also discussed the notarial certificate, a copy of which was produced in evidence. She said that notary public offices in China are an organ of the Chinese Government, and that one of their purposes is to certify the authenticity and legality of a “civil juristic act”, or a “fact or a document of legal significance” in accordance with statutory procedure. She said that before notarising a certificate, a notary public office will require an applicant to provide specific supporting materials. It was Ms He’s evidence that matters recorded in valid notarial certificates are presumed to be true by the Chinese legal system, and that they are rarely overthrown by contrary evidence. This evidence does not however help in this case, because the copy of the notarial certificate produced in evidence, was not certified as required by s 17(2)(A).
[84] It was Ms He’s conclusion that, under Chinese law, the Chinese Courts would recognise that Yamu and Li Hui were Qinping’s adoptive parents. She said as follows:
… in my opinion, the Chinese Court were returning Ling family is the natural, is the parent, is the legal parent of the deceased based on the several considerations. The first, the children was adopted in 1978 by the factual adopting relationship, and second, the custody was transformed, the childhood of the deceased was raised up by the Ling family, by [Li Hui] and Yamu, and so the changes has been made to household register book to evidence the change. So in my opinion, in the Chinese Court, the Court will determine the Ling family is the legal parent.
[85] There was no evidence called by the Wu family to contradict Ms He’s evidence. Given Ms He’s evidence, I am satisfied, in terms of s 17(2)(a) of the Adoption Act, that Qinping’s adoption by the Ling family is legally valid according to the laws of China.
[86] Turning to s 17(2)(b), I reiterate my findings that Li Hui and Yamu provided for Qinping’s day-to-day care. It was Ms He’s evidence that under the adoption and marriage laws in China, on adoption, all rights and duties of the natural parents in relation to the adopted child are terminated, and the adoptive parents assume all rights
and duties in relation to the adopted child, particularly in relation to the provision of day-to-day care for the adopted child. I accept Ms He’s evidence, and I am satisfied that, on adoption, Li Hui and Yamu had a right superior to that of Ming Qun and Lan Ying in respect of Qinping’s day-to-day care. Section 17(2)(b) is satisfied as well.
[87] Finally, I turn to the inheritance issue – s 17(2)(c)(ii). This provision is both curious and poorly worded.23 Ms He gave evidence that the law of succession in China provides that, where a person dies intestate, the first in line of succession are the deceased’s spouse, children and parents. She said that, where there is an adoption, parents for this purpose are the adoptive parents, to the exclusion of the natural parents. I accept this evidence and accept that under Chinese law, Li Hui and Yamu have a right superior to that of Ming Qun and Lan Ying to inherit Qinping’s property passing on intestacy without other next of kin.
[88] In my judgment, Li Hui’s and Yamu’s adoption of Qinping falls within s 17 and it has the same effect as an adoption order made in this country. This means that for all purposes, Yamu, as the adoptive parent, is deemed to have become the parent of Qinping, pursuant to s 16(2)(a) of the Adoption Act.
Result
[89] For the reasons I have set out, I am satisfied that Yamu is entitled to obtain the grant of letters of administration of Qinping’s estate, in priority to Jimmy. I so order, and I make an order that letters of administration of the estate of the deceased, Qinping Ling, be granted to her adoptive mother, Yamu Chen. The caveat lodged by Sheng Yong Wu is set aside.
Costs
[90] Yamu is the successful party. She is entitled to her costs and reasonable disbursements. In this regard, I direct as follows:
23 See Brookers Family Law – Child Law (online ed, Thomson Reuters) at [PA 12.2.06].
(a)within 15 working days of the date of this judgment, Yamu is to file and serve a memorandum setting out the costs and disbursements claimed by her;
(b)within a further 15 working days, Jimmy is to file and serve a memorandum in response.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.
Wylie J
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