Tang v Collins - [2014] NZHC 1011

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-345 [2014] NZHC 1011

BETWEEN
HONG KHAM TANG

Plaintiff

AND

PAUL NORMAN COLLINS First Defendant

HONG KEO TANG AND AMALIA ASAYAS TANG

Second Defendants

Hearing: 31 March - 1 April 2014

Counsel:

M J Wenley for Plaintiff
H M McKee for First Defendant
D O'Connor for Second Defendants

Judgment:

15 May 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 15 May 2014 at 2 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Willis Toomey Robinson Scannell Hardy, Napier 4142
Glaister Ennor, Auckland 1140
Lunn & Associates Ltd, Napier

Counsel: David O’Connor, Napier

TANG v COLLINS [2014] NZHC 1011 [15 May 2014]

Introduction

[1] The late Mr Hai Ching Tang (“Mr Tang Senior”) came to New Zealand from Thailand with several members of his family in April 1980. Mr Tang Senior could not read or write English and did not speak any English other than very rudimentary greetings. Mr Tang Senior was fluent in the Laos and Chinese Chaozhou languages.

[2] On 24 November 1999 Mr Tang Senior executed a will in which he bequeathed to his younger son Hong Keo Tang, known in the family as Little Hong (“Little Hong”), and Little Hong’s wife Amalia Tang (“Amalia”) Mr Tang Senior’s half share in the property at 5 Aintree Place, Taradale. Little Hong translated the contents of the will from English into Laotian for Mr Tang Senior prior to the execution of the will.

[3] Mr Tang Senior died on 22 October 2008 and a grant of probate in common form was made to Mr Paul Collins (“Mr Collins”) who was Mr Tang Senior’s lawyer. In this proceeding Hong Kham Tang, known in the family as Big Hong (“Big Hong”), the elder son of Mr Tang Senior, applies for an order recalling the grant of probate made on 1 April 2009. The application is made on the grounds that there is doubt whether or not Mr Tang Senior understood the will or had full knowledge of its contents because Mr Tang Senior was unable to read English and Big Hong asserts that Little Hong was not fluent in either Laos or Chinese Chaozhou.

The application

[4] The application is made in reliance on r 27.18 which states in material part:

27.18 Doubt as to will-maker’s understanding

…

(2) This rule also applies if—

(a) the will-maker—

(i)       was blind; or
(ii)      was illiterate; or
(iii)     signed the will by mark; and

(b) the will does not state that the will was read over to, and thoroughly understood by, the will-maker before the will- maker signed it.

(3) This rule also applies if the court is doubtful for any other reason whether or not the will-maker, at the time the will was signed,—

(a) thoroughly understood the will; or

(b) had full knowledge of its contents.

(4) Evidence must be given under rule 27.16 satisfying the court that the will-maker, at the time the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tang v Collins

Details

AGLC: Tang v Collins [2014] NZHC 1011
Case: [2014] NZHC 1011
Decision Date: 15 May 2014

CaseChat Overview and Summary

The case of Tang v Collins involved a dispute over the validity of a will made by the late Mr Hai Ching Tang. The will bequeathed his half share in the property at 5 Aintree Place, Taradale, to his younger son Hong Keo Tang and his wife Amalia. The elder son, Big Hong, challenged the will's validity on the grounds that his father did not understand or had full knowledge of its contents due to his inability to read English and the alleged lack of fluency of the translator, Little Hong. The court was required to determine the fluency of Little Hong in the Laos language and whether the contents of the will were accurately conveyed to Mr Tang Senior. The court found that Little Hong was fluent in conversational Laos, and based on the evidence of Mr Collins and Thong Say, the contents of the will were accurately conveyed to Mr Tang Senior. Therefore, the court dismissed Big Hong's application for an order recalling the grant of probate. The defendants were entitled to costs, with only one set of costs to be allowed.

Orders