LO KIN KEUNG v. LO KA MING

HCAP 5/2019

[2023] HKCFI 1887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 5 OF 2019

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BETWEEN

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J U D G M E N T

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A. Introduction

1.  The late Mr Lo Kan Sang (“the Deceased”) passed away on 17 May 2018 at the age of 86. The plaintiff (“P”) is the grandson of the Deceased (“the son of the Deceased’s second child). The defendant (“D”) is the Deceased’s eldest child.

2.  On 18 January 2019, P commenced these proceedings to seek an order to propound a will made by the Deceased on 4 May 2018 (“the 2018 Will”). D has made a counterclaim in these proceedings for an order to propound a will made by the Deceased on 17 September 2015 (“the 2015 Will”).

3.  By the 2015 Will, the Deceased revoked all his former wills and testamentary dispositions, nominated constituted and appointed D to be the executor and trustee of the 2015 Will, and gave a residential unit owned by the Deceased (“the Property”) to his two sons, name D and Mr Lo Ka Wah (“LKW”, the Deceased’s 4^th child), as joint tenants for their use and benefit absolutely. The 2015 Will was drafted by Ms Wong Wai Mun (“Wong”), a clerk in Messrs Kelvin Cheung & Co (“KCC”). D’s case is that the 2015 Will was drafted by Wong in accordance with the Deceased’s instructions, and Wong confirmed that the Deceased’s mental condition at that time was good and sound. Further, the 2015 Will was interpreted to the Deceased by Mr Chan Yuk Hang Ricky (“Chan”), solicitor of KCC, before the Deceased executed the Will.

4.  On the face of the 2018 Will, the Deceased revoke all former wills and testamentary dispositions, gave the Property to P, and gave two properties in Guangdong to another grandson Mr Lo Kin Lok. The 2018 Will bears the Deceased’s mark, thumbprint and seal, and appears to be executed by the Deceased witnessed by Mr Leung Ho Yin and Mr Zian Yuen Fun of Messrs HY Leung & Co LLP.

5.  The Deceased passed away about two weeks after the date of the 2018 Will.

6.  On 4 December 2020, P, D, LKW and another family member have executed a Deed of Settlement. In that deed, P and D have agreed, inter alia, that P’s claim in this case should be dismissed, and the 2015 Will should be regarded as the last will of the Deceased.

7.  By the Order of Master Hui dated 19 February 2021, P’s claim here is dismissed with no order as to costs.

8.  The remaining issue in these proceedings is D’s counterclaim. Since the Court is asked to pronounce against the 2018 Will, which on its face appears to be the last will of the Deceased, notwithstanding the settlement agreement between the parties, I have to examine the evidence to see whether D is entitled to have the order sought in his counterclaim.[1]

9.  D has produced the following evidence in support of his counterclaim:

(1) D’s Affirmation dated 11 October 2022

(2) Affirmation of Chow Kit Ning (“Chow”, a witness seeing the execution of the 2015 Will by the Deceased) dated 11 October 2022

(3) Wong’s Affirmation dated 11 October 2022

(4) Psychiatric Report prepared by Dr Yin Chen Christian Chui (“Dr Chui”) dated 8 July 2022 (“Dr Chui’s Report”)

10.  By the Order of Au-Yeung J dated 22 May 2023, the aforesaid affirmations and expert report are deemed to be the evidence in this trial without calling the makers thereof to give any oral evidence.

11.  In this trial, P is acting in person, and D is represented by Ms Christine Yu of counsel.

The principles

12.  A person who propounds a will bears the legal or persuasive burden of proving the following on the balance of probabilities[2]:

(1) there was due execution;

(2) the testator was of testamentary capacity; and

(3) the testator knew and approved of the contents of the will.

13.  On the issue of formal validity, the propounder is required to prove that the will was signed by the testator (or by some other person in his presence and by his direction) and that the statutory requirements for the formal validity of wills set out in s.5(1) of the Wills Ordinance (“WO”) have been complied with.[3]

14.  On the issue of testamentary capacity, the follow questions should be satisfactorily answered[4]:

(1) whether the deceased was capable of understanding the nature of the act of making the will and its effects;

(2) whether the deceased was capable of understanding the extent of the property of which he was disposing; and

(3) whether the deceased was able to comprehend and appreciate claims to which he ought to give effect.

15.  Ultimately, the Court is required to apply a commonsense judicial judgment based on the whole of the evidence.[5]

16.  In considering knowledge and approval, the correct (or more preferable) approach is to ask a single question of whether the testator understood what was in the will when he signed it, and what its effect would be, and considered that question in the light of all the available evidence and the inferences to be drawn from that evidence.[6]

17.  The mere fact that the will has been read over to a testator is not conclusive evidence that he or she knew and approved of the contents of it. It remains necessary for the Court to consider all the relevant evidence available in order to determine whether the burden of proof has been discharged.[7]

The 2018 Will

18.  Based upon the evidence before me, in my judgment, the Deceased did not have the necessary testamentary capacity when he executed the 2018 Will.

(1) Dr Chui is a psychiatrist. His expertise is not challenged. I am satisfied that Dr Chui has the expertise to give expert opinion on the testamentary capacity of the Deceased at the time of the execution of the 2018 Will.

(2) Although Dr Chui did not examine the Deceased on 4 May 2018, the opinion in his report is based upon the notes of the doctors and nurses who did examine the Deceased, and the evidence from D (which has not been challenged or contradicted by any other evidence), who visited the Deceased every day after the Deceased being admitted to the hospital on 21 April 2018, until the death of the Deceased on 17 May 2018. I am of the view that Dr Chui’s opinion is based upon reliable evidence, and hence I would attach weight to the opinion set out in Dr Chui’s Report.

(3) From the medical notes made by the doctors and nurses taking care of the Deceased and D’s observations, the Deceased had the following conditions since the early morning on 3 May 2018:

(a) Since about 4:15 am, the Deceased was restrained by safety vest due to restlessness, being agitated, attempted to climb out of bed and tampering with intravenous lines.

(b) At about 2:15 pm, the Deceased was noted to be “tired looking”.

(c) At about 4:55 pm, bilateral upper limb holders (another physical restraint device) was used on the Deceased, in addition to the safety vest.

(d) At about 6:10 pm, the Deceased appeared to be “confused”. His body temperature dropped to 33.1°C. A bair hugger was used on the Deceased until 5 May 2018 at 9:40 am.

(e) The Deceased was observed to be confused and incommunicable on 3 May 2018 except by displaying some small hand movements.

(4) Having considered the medical notes concerning the Deceased and the information provided by D, at the concluding paragraph of his report, Dr Chui said:

“With regards to the mental state of [the Deceased] at the time of the execution of [the 2018 Will], which I believed happened some time during the course of the day of 4^th May 2018. Although it is difficult to be certain about [the Deceased]’s mental state and testamentary capacity at the material time of signing [the 2018 Will], given all the above-mentioned evidence and the fact [the Deceased] suffered from major neuro-cognitive deficits, poor executive functioning, being hardly communicable and significant deterioration in his general state since the 3^rd of May 2018, it is likely that at the time of signing of [the 2018 Will], [the Deceased] was in a state of delirium, whereby there would be clouding of consciousness, slurred or incoherent / incomprehensible speech, disorientated in time, place and person, poor attention span / concentration, psychomotor agitation, retardation and possible delusions and hallucinations, therefore it is highly unlikely that [the Deceased] would have the mental capacity to make any meaningful decisions regarding his property issues on the 4^th of May 2018.”

(5) Dr Chui’s opinion is well-reasoned and clear. I accept his evidence.

(6) Ms Yu has fairlty drawn my attention to the opinion of Dr Kwok Choi Hon (“Dr Kwok”) as recorded in the medical notes. Dr Kwok examined the Deceased on 2 May 2018. Based upon his examination, Dr Kwok’s opinion is that the Deceased was mentally fit to give instruction regarding his property issue. However, as submitted by Ms Yu, Dr Kwok’s opinion at most would be relevant to the Deceased’s condition on 2 May 2018. There is indisputable evidence showing that the Deceased’s condition deteriorated significantly on 3 May 2018. In my view, Dr Kwok’s opinion must be overtaken by the subsequent significant deterioration of the Deceased’s condition since 3 May 2018. Dr Kwok’s evidence cannot be taken as evidence showing the Deceased’s testamentary capacity at the time of the execution of the 2018 Will, which should be a time on 4 May 2018.

19.  In my judgment, the Deceased did not have the testamentary capacity at the time of the execution of the 2018 Will.

20.  As to whether the Deceased knew and approved of the contents of the 2018 Will, since I have found that the Deceased did not have testamentary capacity at the time of the execution of the 2018 Will, the answer would also be “No”.

21.  For the reasons above, in my judgment, the 2018 Will is null and void and has no effect.

The 2015 Will

22.  Regarding the 2015 Will,

(1) The 2015 Will is regular on the face of it and apparently duly executed by the Deceased. The presumption that everything was properly done (omnia rite et solemniter esse acta) arises. There is no evidence rebutting the presumption. Accordingly, I would infer that the requirements in s.5 of the WO have been duly complied with.[8] Further and in any event, D has produced Chow’s Affirmation (which is evidence not contradicted by any other evidence and is accepted by this Court) showing that the requirements in the WO have been complied with.

(2) In Wong’s Affirmation, Wong said:

(a) On 16 September 2015, the Deceased call Wong and instructed Wong to draft a will. Detailed instructions were given by the Deceased to Wong.

(b) On 17 September 2015, the Deceased came to the office of KCC to meet Wong. Wong read and explained the contents of the 2015 Will to the Deceased, and the Deceased confirmed that the contents of the 2015 Will were in accordance with his instructions. The Deceased also said that he had no further instruction and had no comment on the draft will. It appeared to Wong that the Deceased’s mental condition at that time was good and sound.

(c) After re-confirming the instructions from the Deceased, Chan interpreted the contents of the 2015 Will to the Deceased. The Deceased’s execution of the 2015 Will was witnessed by Chan and Chow.

(3) In D’s Affirmation, D said that the Deceased called him on 16 September 2015, asking D to accompany him to go to KCC’s office on 17 September 2015. The Deceased also told D why he wanted to make a new will to supersede an earlier will. D accompanied the Deceased to go to KCC’s office on 17 September 2015. The Deceased himself paid the fees to KCC for drafting the 2015 Will. The Deceased was having a sound mind on 16 and 17 September 2015.

(4) Wong’s evidence and D’s evidence have not been contradicted by any other evidence. I accept their evidence. Based upon the evidence accepted by this Court, I am satisfied that the Deceased was of testamentary capacity at the time of the execution of the 2015 Will, and he knew and approved the contents of the 2015 Will at the time of the execution.

23.  In my judgment, the 2015 Will is the last will of the Deceased, and should be given effect.

Disposition

24.  I allow D’s counterclaim. I grant judgment to D in terms of the draft submitted by Ms Yu.

25.  The parties have agreed that there be no order as to costs. I accede to the parties’ joint request.

26.  I thank Ms Yu for the helpful assistance rendered to the Court.