The Court of Appeal re-affirms costs principles in contentious probate
- May 4
- 2 min read
Updated: May 5
In Chan Shu Lam v Chan Chau Wah [2026] HKCA 609, the Court of Appeal (Hon Poon CJHC and Keith Yeung J) refused the Plaintiff’s renewed application for leave to appeal against a costs order made after a probate trial. The trial involved two main issues: the Probate Issue - whether the Will was valid; and the Beneficial Ownership Issue - whether the Defendant had a beneficial interest in the deceased’s property.
At trial, the Plaintiff succeeded on the probate issue and the Defendant succeeded on the beneficial ownership issue. Having considered the principles laid down by the Court of Final Appeal in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800, Deputy High Court Judge Alan Kwong accepted that the litigation was caused by the conduct of the Deceased and the Plaintiff, and there was a reasonable need to investigate the validity of the Will. The learned Trial Judge disapproved the Plaintiff’s litigation conduct in knowingly making false allegations and dishonestly running a false case, and expressed that the Defendant conducted the proceedings in a reasonable, proportionate and sensible manner. The Trial Judge ordered that that the Plaintiff’s costs and 65% of the Defendant’s costs be paid out of the estate. The Plaintiff’s application for variation of the costs order was refused.
In the application for leave to appeal before the Trial Judge, the Plaintiff argued that the Defendant should bear personal responsibility for costs because she had allegedly failed to make proper enquiries into whether there was a later will before applying for probate on the basis of the previous will. The argument was rejected. The Trial Judge accepted the Defendant’s submissions that it would be unfair to criticise the Defendant on a point that had not been properly pleaded or fully explored at trial.
In the renewed application before the Court of Appeal, the Court of Appeal reiterated that costs are quintessentially a matter of discretion, and that anyone seeking leave to appeal against a costs order faces a very high hurdle. Appellate intervention will only arise where the judge was wrong in principle or plainly wrong in the exercise of discretion. The Court of Appeal expressed that the Trial Judge had given detailed reasons which are supported by the factual findings, including the findings that the Plaintiff had stonewalled the Defendant from the deceased’s affairs, concealed the deceased’s whereabouts, and did not inform the Defendant of the deceased’s death. The Court of Appeal also agreed with the Trial Judge that it would be unfair for the Plaintiff to criticise the Defendant with regard to a matter that was not properly explored at trial.
A striking theme across the decisions is the Courts’ emphasis not just on who won which issue, but on overall fairness, litigation conduct, and whether a party’s stance was reasonably taken in the circumstances. The Courts also endorsed a focused approach to contentious probate litigation, noting that the Defendant had not adopted a “kitchen sink” strategy and had acted in a reasonable and proportionate manner.
The full judgment of the Court of Appeal can be viewed here:
Stephen Siu, instructed by Jisp Cheung & Co., acted for the Defendant at trial and on appeal.