CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

HCAP9/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 9 OF 2005

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  This is a sad case.  It demonstrates once again that contentious probate proceedings, where the drama of the family rifts unfolds with all the ill-feelings, resentment and animosity between the protagonists climaxing on public display, are unavoidably destructive of what is left of the testator’s family.  Win or lose, the family will most likely be torn further apart irretrievably.

2.  The testator here is the late Mr Chiu Yau Chuen (“Mr Chiu”).  He made two wills on 24 December 1997 and 5 June 2003 respectively (“the 1997 Will” and “the 2003 Will”).  Under the 1997 Will, he distributed his enormous wealth to each of his fourteen children then alive,[1] including the nine legitimate children (“the 9 Children”) he had with his ex-wife, Ms Wong Mei Ying, Wendy (“Ms Wong”).  The 2003 Will named the defendant, his common law wife since 1990,[2] as the sole beneficiary.  The 9 Children were expressly disinherited.  Diametrically opposed, the two competing wills inevitably excite contention, pitting the plaintiffs, six of the 9 Children against the defendant.

3.  The background circumstances leading to these proceedings are outlined below.

A.1.   Mr Chiu and his household

4.  Mr Chiu was born in the Mainland on 29 April 1949.  He was educated in Taiwan and had since the early 1970s settled in Hong Kong.  His business success began with the taxi company, 群英的士公司.  Over the years, he had accumulated substantial wealth through investments in the property and stock market.  He kept a low profile but was undoubtedly a very astute businessman.

5.  Mr Chiu’s success came with a price.  A heavy smoker, he was not a healthy man.  He had a number of chronic medical conditions including anxiety, diabetes and gastrointestinal problems since the late 1980s.  He had a stroke in 1998.  He was admitted into hospital, usually for a night or two, on numerous occasions between 1988 and 2004.  He was on long term medication prescribed by several doctors for many years.

6.  Mr Chiu had a large ménage through union with Ms Wong, the defendant, Ms Chan Koon Hing and Ms Lam Po Chun (“Ms Chan” and “Ms Lam”).

7.  He married Ms Wong in Hong Kong on 5 September 1973.  Ms Wong bore him the 9 Children :

(1)     Man Fung, Mickey, daughter (文鳳), on 14 June 1973;

(2)     Man Fu, son (文虎), on 10 July 1974, the 1^st plaintiff;

(3)     Man Ching, Belinda-Bobo, daughter (文貞), on 25 July 1975;

(4)     Man Tan, Catherine, daughter (文丹), on 8 November 1976;

(5)     Man Shan, Emily, daughter (文珊), on 22 November 1977, the 2^nd plaintiff;

(6)     Man Pau, Bruno, son (文豹), on 21 August 1979, the 3^rd plaintiff;

(7)     Man Lun, Andy, son (文麟), on 27 May 1985, the 4^th plaintiff;

(8)     Man Lung, son (文龍), on 25 September 1986, the 5^th plaintiff; and

(9)     Man Ying, daughter (文瑩), on 24 November 1990, the 6^th plaintiff.

8.  Because of marital differences, Mr Chiu and Ms Wong agreed to separate on 27 August 1989.  They signed a home-made Chinese separate agreementdated 24 November 1991, which was prepared by Man Fu, whereby Ms Wong agreed not to claim any maintenance and Mr Chiu was to have the sole custody of the 9 Children.  Later on 10 January 1992, they executed a formal deed of separation prepared by Messrs Albert KK Luk & Co.  Under the separation deed, the couple agreed not to make any financial claim against each other.  Mr Chiu was given the sole custody, care and control of the 9 Children with liberal access to Ms Wong.  He also took up the sole responsibility for the maintenance, support and education of the 9 Children in a manner suited to their station in life.  Mr Chiu presented a petition for divorce on 15 July 1992.  A decree nisi was granted on 10 December 1992, giving him custody of Man Shan, Man Pau, Man Lun, Man Lung and Man Ying, then minors, with reasonable access to Ms Wong. The decree nisi was made absolute on 19 April 1993, which formally brought an end to their marital relationship.

9.  After their divorce, Ms Wong lived in the accommodation provided by Mr Chiu to the unmarried children of hers, primarily located in Baguio Villa, Chi Fu Fa Yuen and Aberdeen.  She also spent some time at Flat 6C, Block 2, Estoril Court, 55 Garden Road, Mid-Levels (“Flat 6C”), which was the principal residence of Mr Chiu and the defendant.  In late 2001 or early 2002, she moved to live in Sheung Ping, Mainland by herself.

10.  Man Fung, Man Ching and Man Tan left home at a young age.  Man Fung left in mid-1980s.  Man Ching left home within a few years of Ms Wong’s divorce from Mr Chiu.  Man Tan left in around 1998.  They had not returned to live with Mr Chiu since their departure.

11.  For most of the time, the six plaintiffs lived in the various accommodation provided by Mr Chiu.  In October 2001, Man Shan together with her husband moved out of the accommodation in Baguio Villa and lived in a self-rented flat in Aberdeen.  Man Pau, with his wife and infant daughter, moved to a unit in Shau Kei Wan sometime after September 2002.  Man Fu was admitted to hospital on 21 and 22 April 2003 because of schizophrenia.  Ms Wong visited him at the hospital and then returned to Sheung Ping.  On 24 April 2003, Ms Wong was found to have committed suicide.  Man Fu was hospitalized again on the following day.  It is the defendant’s case that Mr Chiu then decided to disown Man Fu.  His belongings in the accommodation in Baguio Villa were soon thrown out.  He had not stayed in any accommodation provided by his father since then.  The remaining three younger plaintiffs continued to live in his father’s various accommodation.  They last lived at Flat 6C until they were evicted by the defendant on or about 19 October 2005 after the present dispute arose.

12.  Mr Chiu first met the defendant in about 1983.  He was then running a garment factory and she was a sewing worker there.  They soon became romantically involved.  In about 1990, they started to live together as if they were husband and wife.  It is her evidence that he regarded her as his wife after she gave birth to their son Man Ho (文昊), on 22 February 1990.  Although they were never married, the defendant, upon Mr Chiu’s request, adopted his surname “Chiu” as hers and changed her maiden name to 群英, which resembled群英的士公司, the corporate vehicle with which he began to gain and cumulate his immense wealth in the years to come.

13.  The defendant bore Mr Chiu two more daughters, A[3] and B on 7 July 1993 and 20 July 1995.

14.  The defendant, Ms Chan and Ms Lam were neighbors and friends since childhood.  In 1990, the defendant introduced Ms Chan to Mr Chiu as he needed a personal assistant.  Ms Chan soon became his mistress, to which the defendant did not object.  She bore him two daughters, C and D on 20 November 1995 and 21 April 1997 and a son, E, on 2 June 1998.  She remained his personal assistant until his death.

15.  It was also in 1990 when the defendant introduced Ms Lam to Mr Chiu to help him set up karaoke devices for signing Chinese opera, a habit in which he indulged.  He and Ms Lam started to live together in 1993.  She bore him a son, F, on 3 September 2000.

16.  During his lifetime, Mr Chiu never lived with any of the children born of the defendant, Ms Chan and Ms Lam.  They lived apart with their carers in Hong Kong or the Mainland, as the case may be.

A.2.   The 1997 Will

17.  On 24 December 1997, Mr Chiu executed the 1997 Will at the office of Messrs Day & Chan.  The 1997 Will was prepared and handled by Mr Pak Kui Shing (“Mr Pak”), a legal executive of Messrs Day & Chan.

18.  Under the 1997 Will, Mr Chiu bequeathed his entire residuary estate to all fourteen of his children then alive.  He appointed Man Fu, the eldest son, and the defendant as joint executrixes.  The residuary estate was to be divided into nineteen equal parts, to be distributed among the fourteen children with each son having two parts and each daughter, one part.  Neither Ms Wong, the defendant, Ms Chan nor Ms Lam was provided for.

19.  The fact that Mr Chiu had made the 1997 Will was no secret to his family at the time.

20.  According to the defendant, two major precipitating events, which took place in October 1999 and April 2003 respectively, led to the subsequent change of Mr Chiu’s testamentary dispositions in 2003.

21.  The first major event is the Chi Fu Incident.

A.3.   The Chi Fu Incident

22.  In the summer of 1999, Mr Chiu went on an extended trip to South East Asia with the defendant, Ms Wong and Ms Lam.  In around September, Ms Wong returned to Hong Kong alone.  At about the same time, Mr Chiu arranged Man Shan, Man Lun, Man Lung and Man Ying to live at Room C, 5^th Floor, Block 1, Chi Fu Fa Yuen, Pokfulam (“Unit 5C”), which was rented in the name of Ms Chan.

23.  On 5 October 1999, Man Shan and her younger siblings moved into Unit 5C.  That afternoon, a quarrel broke out between Ms Chan and Ms Wong.  The police was eventually called.  Mr Ching Wan Fung of counsel (“Mr Ching”) was instructed to attend Unit 5C as well.  There, he spoke to Mr Chiu over the phone.  According to him, Mr Chiu was extremely upset about the conduct of Ms Wong and some of her children.  Mr Chiu further said that he had made a will and he wanted to change it.  The police left after investigation.  Ms Chan said on the following night, Ms Wong harassed her again.  So she made a report to the police.  Ms Wong then took the four children with her to the Aberdeen police station.  Thereafter she and the four children did not return to Unit 5C.  The Chi Fu Incident ended with Mr Chiu’s arranging the four children to move to a rented unit in Aberdeen.

24.  The defendant’s case is that Mr Chiu had a strong and dominating personality. He expected complete obedience from his women and children.  He would react most strongly if he was shown any disrespect.  He and Ms Wong had never been cordial.  After the divorce, Ms Wong sowed seeds of dissension into the 9 Children.  They had become rebellious and treated Mr Chiu with no respect at all.  Ms Wong and the 9 Children also treated the defendant with utmost hostility and disdain.  When the Chi Fu Incident happened in October 1999, Mr Chiu was upset by the farce.  He was angry with Ms Wong and became disillusioned with the 9 Children who had always sided with her against him.  He wanted to make a new will to impinge upon the benefits of them. He however did not make up his mind until after Ms Wong’s suicide.  This brings me to the second major precipitating event, that is, the dinner at Sheung Ping on 25 April 2003.

A.4.   The Sheung Ping Dinner

25.  As said, on 24 April 2003, Ms Wong was found to have committed suicide at her home in Sheung Ping.  It struck a devastating blow to her children.

26.  Man Fung broke the sad news to Mr Chiu the very same night.  On 25 April 2003, Mr Chiu, together with the defendant and Ms Lam, went to Sheung Ping.  They met Man Ching, Man Tan, Man Shan, Man Pau, Ms Wong’s two brothers and all the respective spouses at a restaurant.  The defendant’s case is that the children present, except Man Ching, treated Mr Chiu with utmost hostility and disdain.  After leaving some money for Ms Wong’s funeral expenses,[4] Mr Chiu returned to Hong Kong with the defendant and Ms Lam.  The defendant alleges that Mr Chiu then firmed up his mind to disinherit the 9 Children.

A.5.   The 2003 Will

27.  Two days after Ms Wong’s suicide, Mr Chiu purportedly gave instructions via Ms Chan to Ms Lilian Chiang of Messrs Deacons (“Ms Chiang”) over the phone for a new will to be prepared.  Ms Chiang is now the senior partner of Messrs Deacons.  At the material times, she was the head of the property department.  Mr Chiu was introduced to her by a banker of DBS Bank in around 2003.  Messrs Deacons mainly provided legal service to him on conveyancing and tenancy matters.  On 28 April 2003, Ms Chan gave Ms Chiang further instructions in person.  Ms Chiang prepared the new will accordingly.  It is Ms Chiang’s evidence that she found it rather disturbing and felt uncomfortable that Mr Chiu decided to disinherit the 9 Children.  She therefore advised that a doctor be present to certify that Mr Chiu had the requisite testamentary capacity to execute the new will.  The defendant then asked Dr Ng Wai Cheong (“Dr Ng”), Mr Chiu’s physician since 1986,[5] to do so.  Ms Chiang also prepared an advice (in English and Chinese) dated 30 April 2003 (“the Advice”) and sent it to Mr Chiu via Ms Chan.

28.  In the meantime, Mr Chiu had left Hong Kong for Thailand with the defendant on 27 April 2003.  They did not return until 26 May 2003.  On 1 June, they went to Macau for a night to gamble.

29.  On 5 June 2003, Mr Chiu and the defendant attended Ms Chiang’s office.  Dr Ng also attended. He purportedly carried out a mental state examination and then certified in writing that Mr Chiu was mentally capable of making a will (“the Certificate”) :

“… [Mr Chiu] attended before me at the time of the execution of his Will. I certify that [Mr Chiu] possesses full mental capacity and is mentally capable of understanding the effect of the Will and to make a decision to sign the Will. [Mr Chiu] acknowledged to me that he was signing the Will voluntarily.”

30.  Ms Chiang went through the Advice and the contents of the 2003 Will with Mr Chiu. He responded to Ms Chiang’s explanation by nodding and saying “yes”, according to what Ms Chiang said in her oral testimony.  He then executed the 2003 Will.  Both Ms Chiang and her associate, Mr Yu Wai Tung (“Mr WT Yu”) signed on the 2003 Will as witnesses.

31.  The 2003 Will revoked all previous wills that Mr Chiu had made, appointed the defendant as the sole executrix and left his entire residuary estate to her alone or should she pre-decease him or did not survive him by 30 days, to their son Man Ho.  Of all Mr Chiu’s children then alive, the 9 Children were singled out and expressly disinherited under Clause 7 :

“For avoidance of doubt, I hereby declare that I do not wish to make any provision for [the 9 Children] in this Will.”

32.  It is the defendant’s case that Mr Chiu instructed her to take care of Ms Chan, Ms Lam and their children out of the assets gifted under the 2003 Will and to decide if and how to provide for the 9 Children if they behaved themselves and did not cause trouble.

A.6.   Mr Chiu’s death and thereafter

33.  Mr Chiu was admitted to Hong Kong Sanatorium & Hospital on 3 December 2004. On the following day, he had a cardiac arrest and died at the age of 55.

34.  Dr Ng was present when Mr Chiu passed away.  He certified the causes of his death being acute myocardial infarction and diabetes mellitus.  However, Mr Chiu’s death certificate dated 5 December 2004 erroneously recorded that he died of dementia, probably due to the fact that Dr Ng used the abbreviation “DM”, which is capable of being understood as dementia.  The mistake was later rectified in the re-issued death certificate dated 31 August 2005. Nothing turns on that error.

35.  The defendant did not tell the 9 Children about Mr Chiu’s death until his body was cremated two weeks later.  On that day, she and Ms Chan brought Man Lun, Man Lung and Man Ying, the three youngest of the 9 Children, the children of the defendant, Ms Chan and Ms Lam to Yuan Yuan Temple to pay respect to Mr Chiu.

36.  On 19 October 2005, the Apple Daily Newspaper published an article on the present proceedings, which included a purported interview with some of the plaintiffs. The defendant read the article and was upset by their behavior.  On the same day, she left the luggage of Man Lun, Man Lung and Man Ying, who were then living at Flat 6C, outside the main door, indicating to them that they should no longer stay.  When they returned later, Man Lun, Man Lung and Man Ying picked up their luggage and left.  They have never returned to Flat 6C since then.

37.  Mr Chiu left a very sizable estate.[6]

B.      THE PARTIES’ CASES AND AGREED MAIN ISSUES

B.1.   The parties’ case

38.  The plaintiffs allege that Mr Chiu lacked testamentary capacity when he executed the 2003 Will and that he did not know or approve of its contents.

39.  Despite the divorce, the relationship between Mr Chiu and Ms Wong remained cordial.  Mr Chiu had all along been a loving and caring father, taking care of Ms Wong’s needs as well as theirs.  They deny the defendant’s version of what took place at the Sheung Ping Dinner.  The decision to disinherit them by virtue of the 2003 Will is wholly irrational, which supports their contention that Mr Chiu lacked the requisite testamentary capacity.

40.  According to the plaintiffs’ experts, Mr Chiu was suffering from delirium or significant cognitive impairment at the time when he purportedly gave instructions for and executed the 2003 Will.  The causes of his mental incapacity are multiple, including :

(1)     his established cerebro-vascular disease which had given rise to three incidents of transient ischemic insult;

(2)     his long standing dependence on benzodiazepines and the cocktails of drugs including psychotropics that he had been taking over the years, including at the time of the execution of the 2003 Will;

(3)     the bereavement caused by the death of Ms Wong.

41.  The plaintiffs contend that the mental state examination conducted by Dr Ng on 5 June 2003 fell well below the acceptable standard.  There was in substance no valid mental state examination on Mr Chiu before he executed the 2003 Will. They also complain that both Ms Chiang and Dr Ng had failed to follow the professional guidance for lawyers for handling wills as laid down in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (2010), published by the British Medical Association and the Law Society” (“the Guide”).

42.  On knowledge and approval, the plaintiffs rely on the 2^nd limb of the rule in Barry v Butlin (1838) 2 Moo PC 480.  They argue that Ms Chan, who gave instructions to Ms Chiang for the preparation of the 2003 Will, was closely associated with the defendant, the sole beneficiary, and that the defendant exercised effective control over access to Mr Chiu.  They also doubt if Ms Chan had accurately relayed Mr Chiu’s instructions to Ms Chiang.  They complain that there is a total lack of substance behind the purely cosmetic process of instruction and execution. And it was the defendant who asked Dr Ng to certify Mr Chiu’s mental state.  The abrupt, unnatural and dramatic change from the 1997 Will, a perfectly normal one, to the 2003 Will, an irrational one and the chain of beneficial self-interest in its preparation make the latter an officious will.  All the circumstances ought to excite the court’s suspicion and call upon it to be vigilant and jealous in examining the evidence.  Unless the suspicion is removed and the court is satisfied that the 2003 Will does express Mr Chiu’s true will, it should not be propounded.

43.  The plaintiffs contend that they have sufficiently discharged their evidential burden of proof and shifted the burden on the defendant, as propounder, to prove affirmatively the validity of the 2003 Will.

44.  The plaintiffs claim for an order propounding the 1997 Will in its solemn form.

45.  The defendant contends that the 2003 Will is rational on its face, given the long-standing “husband and wife” relationship between Mr Chiu and the defendant and the complete disinheritance of the 9 Children was the consequence of the material change of circumstances in the parent-child relationship brought about by the Chi Fu Incident and the Sheung Ping Dinner. She contends that when he executed the 2003 Will, Mr Chiu did not lack any testamentary capacity, which is confirmed by the independent factual witnesses and experts whom she called.  Further, because of what Ms Chiang did before he executed the 2003 Will, the Deceased was fully aware of its contents of the 2003 Will and approved of them.  She further alleges that after he executed the 2003 Will, Mr Chiu tore up the original and copy of the 1997 Will in her presence at Flat 6C.  She counterclaims for, inter alia, an order propounding the 2003 Will in its solemn form.

B.2.   Agreed main issues

46.  The main issues as agreed between the parties are as follows :

(1)     Was the 2003 Will executed by Mr Chiu with the requisite testamentary capacity?  (“Issue 1”)

(2)     If in determining Issue 1 it is necessary to consider Mr Chiu’s testamentary capacity at the time when he purportedly gave instructions for the preparation of a new will on or around 26 April 2003, whether he had the requisite testamentary capacity at that time.  (“Issue 2”)

(3) (a) Were the circumstances such as to require the defendant (as propounder) to prove affirmatively that the 2003 Will was executed by Mr Chiu with the requisite knowledge and approval?  (“Issue 3(a)”)

     (b) Was the 2003 Will executed by Mr Chiu with the requisite knowledge and approval?  (“Issue 3(b)”)

(4)     Is the document purporting to be a copy 1997 Will produced by the plaintiffs a true copy of the 1997 Will executed by Mr Chiu in 1997 at the office of Messrs Day & Chan? (“Issue 4”)

(5)     Was the 1997 Will duly executed by Mr Chiu in accordance with the provisions of section 5(1) or otherwise valid under section 5(2) of the Wills Ordinance, Cap. 30? (“Issue 5”)

(6)     If so, whether the 1997 Will was revoked by Mr Chiu?  (“Issue 6”)

(7)     If and in so far as the same was alleged to be revoked by destruction, whether the same was destroyed by Mr Chiu with animus revocandi and absolutely (that is, not conditional on validity of any subsequent will).  (“Issue 7”)

(8)     If the 2003 Will is not shown to be the valid last will of Mr Chiu, should the 1997 Will be admitted to probate or would Mr Chiu be regarded as having died intestate so that his estate should be distributed in accordance with the provisions of the Intestates’ Estates Ordinance, Cap. 73?  (“Issue 8”)

47.  Although eight issues have been identified and agreed, the decisive ones are Issues 1 and 2 on testamentary capacity and Issues 3(a) and (b) on knowledge and approval.  I will dispose of them first and deal with the remainder if necessary.

C.      GENERAL APPROACH FOR PROPOUNDING A WILL

48.  When a will, which is duly executed, is sought to be propounded in the absence of fraud or undue influence and its validity is being challenged on lack of testamentary capacity and of knowledge and approval, the court adopts this general approach on burden of proof :

(1)     A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the testator.  The standard of proof is the balance of probabilities.  The proponent of the will must show on a preponderance of the evidence that it is the will of the testator.  This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that :

(a)     the testator was of testamentary capacity;

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

(2)     If someone wishes to dispute the validity of a will on the grounds that there is want of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.

See Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, per Ribeiro PJ at paras. 171–176, applied by this court in Li Chi Loy v Li Lai Lan [2008] 5 HKLRD 74, at para. 26.

49.  Legal or persuasive burden is markedly different from evidential burden.  The person who bears the legal or persuasive burden needs to prove the matter in question on a balance of probabilities.  However, “[it] is in the nature of an evidential burden that the person discharging that burden does not need to prove anything, but merely to adduce sufficient evidence to require the court to decide the issue in question.  As the learned author of Cross & Tapper on Evidence (10^th ed., 2004) states : ‘the discharge of the … evidential burden proves nothing’ (at p. 134)” : Nina Kung, supra, per Ribeiro PJ at para. 183.  See also Chinachem Charitable Foundation Limited v Chan Chun Chuen, HCAP8/2007, unreported, 2 February 2010, per Lam J at paras. 926 and 928.

50.  I will approach the evidence pertaining to Issues 1 to 3 with these general principles in mind.

D.      WITNESSES

51.  Like most of the probate disputes concerning testamentary capacity, knowledge and approval, the personality, state of mind, desires and prejudices of the central figure, Mr Chiu the testator himself, his relationship with the beneficiary he had or had not provided for and those he had actually disinherited, the reasons for the dramatic change in testamentary dispositions, are all crucial matters that the court needs to examine carefully in order to come to a finding one way or the other.  Now that Mr Chiu is no longer with us, most of those matters can only be examined by way of secondhand and sometimes partisan evidence.

52.  The first witnesses are the three attesting witnesses of the 2003 Will, Ms Chiang, Mr WT Yu and Dr Ng.

53.  Dr Ng also gave evidence in his capacity as Mr Chiu’s treating doctor since 1986.  Another treating doctor that the defendant called is Dr Bell Tse (“Dr Tse”), neurologist, who had attended Mr Chiu since June 1998. They dealt with the clinical observations on Mr Chiu’s mental state while under their care.

54.  The parties gave oral evidence to support their case.  Ms Chan and Ms Lam also testified to corroborate the defendant’s version of events.

55.  As expected, the family members gave sharply conflicting evidence on Mr Chiu’s relationship with Ms Wong, with the 9 Children and, in particular, the plaintiffs themselves and his mental state.  Their evidence was at times heated, bothering on mud-slinging.  The emotional language must, however, be stripped off when in the objective evaluation of their allegations.  In assessing their credibility, I bear in mind the general factors such as inherent probability or improbability, and whether one’s version is supported or contradicted by any objective evidence which is not disputed or is capable of being disputed.  Because of the special circumstances in this case, I need to give due regard to four additional features that may impact on credibility.

56.  First, in the plaintiffs’ eyes, Mr Chiu had all along been a loving and caring father, regardless of his strong personality and divorce from Ms Wong. They knew as a matter of fact that he had made the 1997 Will, naming them beneficiaries of his vast estate.  Yet six years later, unbeknown to them, he purportedly made the 2003 Will, which expressly disinherited them and the other three sisters.  When they learnt of the 2003 Will, they all said it was a complete shock to them.  They did not believe that their father had made the 2003 Will with a sound mind.  Their reaction is perfectly understandable from their perspective.  Emotionally, it is difficult to accept that their father might not have any affection towards them anymore. Financially, the prospect of leading an affluent life, once safely promised by the 1997 Will, might now be gone forever.  In evaluating their evidence, I have to bear in mind the possibility that they may, unconsciously or otherwise, allow their disbelief and the underlying reasons to interfere with their recollections, views or perceptions of the past events.

57.  Second, given the unconventional composition of Mr Chiu’s household, there were, rightly or wrongly, bound to be jealousy, tensions and even animosity between Ms Wong and the plaintiffs on the one side and the defendant and his other co-habitees on the other.  The consequences of the 2003 Will and the litigation have inevitably exacerbated the previous ill-feelings between the two warring camps.  For example, the defendant is infuriated by the interviews purportedly given by some of the plaintiffs to Apple Daily after the commencement of the proceedings, which she regarded as an attempt on their part to embarrass and pressurize her.  Strictly, how they saw and had treated each other is irrelevant to the main issues.  But it is quite possible that they may be, unconsciously or otherwise, influenced by those ill-feelings when they gave evidence on the others’ behavior and conduct.  That is particularly so when one comes to the Chi Fu Incident and the Sheung Ping Dinner.

58.  Third, on the evidence on the relationship between Mr Chiu and Ms Wong after their divorce, partiality is possible because the plaintiffs, on the one hand, and the defendant, Ms Chan and Ms Lam on the other, may well be, unconsciously or otherwise, influenced by their affections or ill-feelings towards Ms Wong, as the case may be.

59.  Finally, it is possible that the credibility of the parties may be undermined by their financial interest in the outcome of the litigation.  It is also true for Ms Lam, whose financial interest is indirect but coincide with the defendant’s because it is her evidence that she regards the defendant as head of the family now and the defendant has promised to take care of her and her child[7] after Mr Chiu’s death.  Ms Chan’s financial interest may not coincide exactly with the defendant’s.  For if the 2003 Will is held to be invalid and the 1997 Will is found to be Mr Chiu’s last will, her two daughters will be entitled to two out of the nineteen equal parts of his estate.  This, as she has said in re-examination, would be better for her financially.  That notwithstanding, Ms Chan also regards the defendant as head of the family who will now take care of her and her children.

60.  In light of these possibilities, I must approach the evidence of Mr Chiu’s family members with extra caution.

61.  The defendant produced the tapes of some telephone conversations made to and from Flat 6C between 24 and 27 April 2003[8] and the transcripts as evidence.  Both parties seek to rely on various parts of those conversations. Whilst it is not necessary to go into details, some salient points did emerge from the calls, to which I will return in a moment.

62.  For independent factual witnesses, the plaintiffs called Mr Pak.  The defendant called Mr Ching, Mr Hui Chun Fan, accountant (“Mr Hui”); Mr Lam Hon Cheung, Tony, estate agent (“Mr Lam”); and Mr Tsang Kit Chun, auctioneer (“Mr Tsang”).  Their evidence dealt with their observations on how Mr Chiu conducted his business affairs and his mental state.

63.  Finally, for experts, the plaintiffs called Professor Brian Tomlinson, pharmacologist, Dr Huang Chen Ya, neurologist, and Dr Wong Chung Kwong, psychiatrist.  The defendant called Dr Edmund Woo, neurologist, and Professor Tang Siu Wa, pharmacologist and psychiatrist.[9]

E.      ISSUES 1 AND 2 – TESTAMENTARY CAPACITY

64.  I now come to Issues 1 and 2 on testamentary capacity.

E.1.   Legal principles

65.  The test on testamentary capacity is well established.  A testator shall understand the nature of the act and its effect; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the existence of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made. The question is whether the testator, when he made the will, was of sound mind, memory and understanding.  The testator’s mind must be sound to be capable of forming the testamentary intentions embodied in the will.  His memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.  His understanding must be sound so that he may comprehend their various ties with him by blood or friendship and their claims on these or other grounds upon his testamentary bounty.  See Banks v Goodfellow(1870) LR 5 QB 549, per Cockburn CJ at p. 565; explained in Boughton v Knight (1873) LR 3 P & D 64, per Sir John Hannen at pp. 65-66; applied by this court in Re LLC (Statutory Will) [2010] 3 HKLRD 16, at paras. 82 and 83.

66.  When applying the test, the court is concerned with the testator’s capacity to form the testamentary intentions embodied in the questioned will, to recall the possible beneficiaries and to understand and comprehend their ties with him and the claims on his bounty.  The court does not require proof of actual understanding, recollection or comprehension.  To do so would run the risk of confusing the requirement of testamentary capacity on the one hand and knowledge and approval on the other. As Gibson LJ explained in Hoff v Atherton [2005] WTLR 99 :

“33. … To make a valid will the law requires what is always referred to as testamentary capacity and, as a separate requirement, knowledge and approval. The latter requires proof of actual knowledge and approval of the contents of the will. The two requirements should not be conflated. The former requires proof of the capacity to understand certain important matters relating to the will. What those matters are were stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at p.565: ‘It is essential … that a testator shall understand the nature of his act and its effects, shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he might give effect…’

34. Mrs Talbot Rice fastens on the words ‘shall understand’ and elevates that to a rule that actual understanding must be proved in every case of doubtful capacity. But in my judgment that is an over-literal approach to a judicial statement and one which ignores the subsequent words ‘shall be able to comprehend and appreciate’. Further, it ignores other statements in the same judgment, such as the approval given at p.557 to the words of Lord Kenyon in charging the jury in Greenwood v Greenwood 3 Curt App:

‘If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.’

See also the similar statements in Stevens v Vancleve 4 Washington at p.267 (‘was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?’) and in Harwood v Baker 4 Moo PC 282 at p.291 (‘a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others’), those statements being cited with approval by Cockburn CJ at pp.568 and 569 respectively.  If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity.  Such evidence may relate to the execution of the will but it may also relate to prior or subsequent events.  It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution.”

67.  Chadwick LJ is of the same view when he rejected the submission that in a case of doubtful testamentary, in order to establish capacity, the person propounding the will must show that the testator actually recalled, understood and appreciated (amongst other things) (a) the nature and extent of his property and (b) if the new will presents a significant change from the last will, that significant change, at para. 62 thus :

“That submission, as it seems to me, betrays a failure to appreciate that the requirements of testamentary capacity and knowledge and approval are conceptually distinct. A finding of capacity to understand is, of course, a prerequisite to a finding of knowledge and approval. A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity – the ability to understand what is being done and its effect – is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.”

68.  Similarly, in McClintock v Calderwood [2005] EWHC 836, Deputy Judge Bompas, QC rejected the approach adopted by an expert on the question of testamentary capacity by directing himself if the testator (a) would have needed to understand the nature of the act and its effects, and the extent of the property of which he was disposing; (b) would have needed to be able to comprehend and appreciate the claims to which he ought to give effect.  He said:

“126. The test which Dr Savla had applied in relation to the question of testamentary capacity was in my judgment inapposite in a couple of respects. In its first limb he had confused testamentary capacity with knowledge and approval. … In relation to testamentary capacity the issue is simply whether [the testator] had the necessary capacity to understand the nature of his act and its effect and to bring to mind what his property was and the appropriate objects of his bounty.”

69.  It is necessary for me to mention the distinction between the two requirements of testamentary capacity and knowledge and approval because in various parts of his closing submissions, Mr Sarony, SC, for the plaintiffs seemed to have conflated them.  In his oral submissions, Mr Sarony reassured me that he had not.  But he went on to submit that there is bound to be an enormous amount of overlap in the court’s approach to the two requirements.  With respect, I disagree.  As can be readily seen from the authorities cited above, the two requirements are conceptually distinct.  They are approached separately with a different focus.  For testamentary capacity, did the testator possess the requisite capacity?  For knowledge and approval, did he know and understand the contents of the will when he signed it and what effect it would be?  I accept that depending on circumstances, some evidence may shed light on both questions.  But it does not mean that the approach to the two issues overlaps.

70.  As observed by Gibson LJ, direct evidence of actual understanding to prove testamentary capacity is not readily available.  The court will look at all the evidence to see what inferences can be properly drawn as to capacity.  The court’s task in evaluating the relevant evidence on capacity is not an easy one.  As Lord Neuberger observed in Gill v Woodall and others [2011] 3 WLR 85, at para. 17 :

“As Scarman J put it graphically in In the Estate of Fuld, decd (No 3) [1968] P 675, 714E: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’ That observation applies with almost equal force when all is murky and uncertain.”

However daunting the task may be, the court will always exercise its judicial acumen to examine all the circumstances to ascertain if the testator possessed the requisite testamentary capacity.  The court will give due regard to all the available evidence, factual and expert, and assess them in the overall context of the case.

71.  Here, the principal factor that the plaintiffs deploy factually in disputing Mr Chiu’s testamentary capacity is the irrationality of the 2003 Will.  Mr Sarony placed heavy reliance on the recent decision of the English Court of Appeal in Sharp v Adam [2006] EWCA Civ 449.  He submitted that irrationality lies at the heart of the concept of testamentary capacity. To test the correctness of Mr Sarony’s proposition, it is necessary to go back to the first principles.  The exercise is also necessary to clear any obscurity which may otherwise cloud the focus when discussing the evidence.

72.  The first and foremost principle stems from the long-held respect of the law for personal autonomy.  The principle is this.  The law entrusts people with complete freedom in general to leave their property as they choose : Gill v Woodall and others, supra, per Lord Neuberger of Abbotsbury MR at para. 16.  See also Perrins v Holland and others [2011] 2 WLR 1086, per Sir Andrew Morritt C at para. 23.  In Banks v Goodfellow, supra, the leading case on testamentary capacity, Cockburn CJ expressed the freedom of testamentary disposition at p. 564 in these terms :

“[The law] leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

73.  Secondly, while leaving testamentary disposition to the testator’s unfettered discretion, the law requires that he should have the requisite capacity in so doing.  This flows from the general legal requirement that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act : Hoff v Atherton, supra, per Lord Gibson at para. 33.  Since capacity is act-specific, the criteria laid down by Banks v Goodfellow, supra, address the unique nature of the act of making testamentary dispositions.

74.  Thirdly, given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices.  Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride.  Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives.  “Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough” : John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D.  The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity.  The court does not sit to correct injustices in that respect.  As Sir John Hannen said in Boughton v Knight, supra, at p.66 :

“Our duty is limited to this, to take care that that, and that only, which is the true expression of a man’s real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.”

75.  Put in another way, the law does not require a testator to act fairly when he makes a will.  The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not.  The law is only concerned with whether he had the testamentary capacity to make the will.  As Lord Kenyon put it in Greenwood v Greenwood (1790) 163 ER 930, at p. 931 :

“Mankind are as capricious as they are many in number, and every body knows that there is hardly a will made but goes some way to vary the succession appointed by the law of the land. Many great estates held by the first characters in the country, the first in virtue, have come to them through a disinherison of the heirs-at-law. If no fraud was committed, but the faculties of the testator were in a situation in which they could exert themselves, the will is not to be tripped up because you and I or other persons would not have made the like disposition in the like circumstances.

On the one hand, we are to take care that a will made by a person not competent to make it shall not be obtruded to the disinherison of the heir-at-law.  And on the other hand, to take equal care, and be equally anxious, that if the will is properly made it shall prevail, however hard it may bear upon those who would be our favourites in equal circumstances, and how hard soever it may bear upon the interest of those whom the feelings of man and almost the ordinances of God require should be provided for.  We must see only whether the will is the will or not of the testator.”

76.  Fourthly, it does not mean that the rationality of a will is never a relevant consideration when the court assesses the testator’s testamentary capacity.  Quite to the contrary.  It is relevant especially when the contested will represents a dramatic change of previous testamentary disposition.  In an extreme case, the irrationality of the testator’s testamentary disposition may well drive the court to find an unsound mind.  See Dew v Clark and Clark (1826) 3 Add. 79 and Boughton v Knight, supra, per Sir John Hannen at p. 69. This brings me to Sharp v Adam, supra.

77.  There, the testator made a will in 1997 under which his two daughters, were the principal beneficiaries.  In 2001, he made another will, naming the two plaintiffs as the principal beneficiaries, thereby disinheriting the two daughters completely.  The two plaintiffs had been working and taking care of the testator for years.  As both the trial judge and the Court of Appeal observed, to include them as beneficiaries under the 2001 will was readily explicable as the testator’s gratitude for their devotion, care and loyalty over many years.  However, to exclude the daughters completely was not readily explicable because there was enduring mutual affection and no significant family rift.  The trial judge considered the terms of the will to see if a logical explanation could be found for the testator’s decision to leave nothing to his daughters, or whether this was evidence of a lack of testamentary capacity.  He concluded that he did not have such capacity, after taking into account various decisive matters including the expert evidence as to the severity of the damage to the testator’s mental faculties and the absence of any rational explanation for the complete disinheritance.

78.  On appeal, the Court of Appeal referred to the expert evidence which supported the view that the irrationality of the will was evidence that the testator’s judgment was impaired and upheld the trial judge’s decision (paras. 92 and 93).  The Court of Appeal was at pains to point out that the decision would not result in any altered approach by the court to the question of testamentary capacity (para. 94).  The inquiry is always focused on testamentary capacity.  As May LJ said :

“79. [Counsel for the appellants] had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what [the testator] should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why [the testator] disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld it he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of [the testator] excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator’s soundness of mind, and not to general questions of perceived morality.” [Emphasis supplied]

What May LJ did was to reiterate the long standing principle that it is not the court’s function to examine the morality of a testator’s testamentary wishes.  The court must look for an explanation for the dramatic change in his testamentary wishes such as complete disinheritance of his children.  But when searching for the answer, its focus remains firmly on the question whether the testator had the capacity to make the will.

79.  It is important to bear firmly in mind the caution sounded by the Court of Appeal in Sharp v Adam when dealing with any perceived irrationality of a contested will. Otherwise one may be easily led astray by the drift of the evidence propelled by the underlying current of family rifts and sentiment and becomes lost at the sea of allegations and debates about morality and irrationality without a rudder.

80.  In my view, when the authorities are properly understood, irrationality or otherwise of a will is no more than a factor in assessing testamentary capacity, to be weighed and evaluated together with all other relevant ones.  How weighty it is depends on the particular circumstances of the case.

81.  Now that irrationality of a will reflects the unsoundness of the testator’s mind, if he did have one, it is most likely that he should have exhibited signs or symptoms of the mental disease when conducting his other affairs as well.  It would be rare if such signs or symptoms did not exist or the medical evidence did not show any mental illness.  As Sir John Hannen put it in his summing up to the jury in Boughton v Knight, supra, at p. 69 :

“It is so contrary to the whole current of human nature that a man should not only form a harsh judgment of his children, but that he should put that into practice so as to do them injury or deprive them of advantages which most men desire above all things to confer upon their children. I say there is a point at which such repulsion and aversion are themselves evidence of unsoundness mind. Fortunately, the case is rare. It is almost unexampled that a delusion consisting solely of aversion to children is manifested without other signs which may be relied on to assist one in forming an opinion on that point.”

The absence of such signs or symptoms or the supporting medical evidence is most likely to be damaging to the contention that an unsound mind can be proved by mere irrationality of the will alone, unless the circumstances of the case are so exceptional that such an inference can still be justifiably drawn.

82.  With these general principles in mind, I now come to the evidence, which is categorized into the following headings :

(1)     Mr Chiu’s mental state according to his family members;

(2)     Mr Chiu’s mental state according to the independent factual witnesses;

(3)     Mr Chiu’s mental state according to the treating doctors;

(4)     The mental state examination conducted by Dr Ng;

(5)     the interactions between Ms Chiang and Mr Chiu;

(6)     the irrationality of the 2003 Will; and

(7)     the experts’ evidence.

E.2.   Mr Chiu’s mental state according to his family members

83.  The evidence of the family members provides important clues of Mr Chiu’s mental state at the material times by reference to how he conducted his daily affairs and interacted with others.  They also stated their observations on his mental state.  I first discuss the evidence of the plaintiffs.

E.2.a.    The plaintiffs

84.  In their witness statements, the plaintiffs tried to paint the picture that Mr Chiu was of an unsound mind when he executed the 2003 Will.  Their evidence does not withstand a closer scrutiny.

85.  In his witness statement, Man Fu referred to the cause of death in Mr Chiu’s death certificate, which was mistakenly stated as dementia.  Plainly, no reliance can be placed on that mistake.  Man Fu then said Mr Chiu had been taking a variety of drugs and had been suspicious of everything and his speech was weird too.  Under cross-examination, Man Fu said what he meant was Mr Chiu kept referring to his wealth and his children as princes and so on.  Man Fu further said that he talked with his father twice about spirits, something he had had experienced before.  Mr Chiu told him that he was very interested in the supernatural world.  Neither Mr Chiu’s boasts of his wealth nor his alleged interest in spirits is an indicator of any mental problem at all.  Man Fu insisted that he could not rule out the possibility that Mr Chiu was having certain mental problems.  Such insistence is however without any basis.

86.  Man Shan first said in her witness statement that because of his habit of taking sleeping pills all the time, Mr Chiu might have Alzheimer’s disease.  This is nothing but speculation, which must be rejected in light of the undisputed medical evidence that Mr Chiu did not have such disease.

87.  She went on to say that the state of Mr Chiu’s mind seemed to be abnormal because he always talked about sky and earth, heaven and hell, princesses and princes, the Queen (which reference should be the Emperor as she corrected during cross-examination), Mao Zedong and Deng Xiaoping.  When pressed for more details of these utterances, Man Shan was not able to give any meaningful particular other than accepting that he mentioned them in different contexts on different occasions.  So when she said Mr Chiu always uttered those words, she was exaggerating.  More importantly, Man Shan spoke of Mr Chiu’s mental state as if she was a close observer of his daily activities.  But the reality is she had not seen Mr Chiu since October 2001 until April 2003.

88.  In the end, Man Shan said that she did not think that Mr Chiu had any problem with his mind.

89.  Man Pau asserted in his witness statement that Mr Chiu executed the 2003 Will with an unsound mind and did not fully understand what he was doing.  He did not explain why.  No weight can be attached to such groundless assertion.

90.  In his witness statement, Man Lun said Mr Chiu took a variety of drugs. He was always suspicious of everything and said all sorts of strange things. He believed that when Mr Chiu was mentally impaired and did not fully understand what he was doing.  Under cross-examination, he said that he did not mean that his father was crazy or there was something wrong with his mind. That was not what he intended when he wrote the witness statement.

91.  In his 3^rd supplemental witness statement, Man Lun said he moved to Flat 6C in around end of July 2001.  He noticed that Mr Chiu ate irregularly and always complained of bad headache.  Mr Chiu always called his name wrongly and had called him Man Lung.  However, under cross-examination, he said he was not suggesting that Mr Chiu had any mental problem because he had called his name wrongly.

92.  Man Lung said in his witness statement that Mr Chiu had been taking a variety of drugs and he was always suspicious of everything and said all sorts of strange things.  He did not believe that Mr Chiu was of a sound mind when he executed the 2003 Will.  Under cross-examination, Man Lung said the strange things he referred to in his witness statement mainly concerned how Mr Chiu boasted about his wealth.  He said from his point of view as his son, he did not find any problem with his father’s mind.

93.  Man Ying did not say much about Mr Chiu’s mental state in her witness statement. She said after Ms Wong’s death, there had been times when after meals, after he had slept for a while, he would come out and ask if the meal was ready, as if he did not remember he had already eaten.  But under cross-examination, she agreed that when he was living with his father, she did not feel that there was any mental problem with him.  (Man Ying also said that Mr Chiu had become much quieter after Ms Wong’s death.  I will deal with this point when I come to the plaintiffs’ case on bereavement.)

94.  In short, despite their initial allegations in the witness statement, none of the plaintiffs is, in the end, able to testify to any abnormality of Mr Chiu’s mind.

E.2.b.    The defendant, Ms Chan and Ms Lam

95.  The defendant on one hand, Ms Chan and Ms Lam on the other had been living with Mr Chiu for over 20 and 10 years respectively.  The thrust of their evidence is that all along Mr Chiu was of sound mind.  He possessed full mental facilities at the time when he executed the 2003 Will.  They had never detected a single track of mental problem in Mr Chiu.  Nor had they heard from any one close to him that Mr Chiu suffered from the same.

96.  I accept their evidence that they did not detect any mental problem with Mr Chiu.  Their observation is entirely consistent with the plaintiffs’.

E.3.   Mr Chiu’s mental state according to the independent factual witnesses

97.  Given his business interests, Mr Chiu had consulted professionals from time to time.  Their evidence on how he interacted with them and conducted his business affairs provides cogent evidence on his mental state.

E.3.a.    Mr Ching

98.  Mr Ching, a barrister called in 1994, first acted for Mr Chiu’s family in 1996 in connection with a police investigation into a deception case in which Mr Chiu and one of his tenants were possible victims.  He first met Mr Chiu in April 1998 and had acted for him and his family since then.  In the several years since the Chi Fu Incident, Mr Ching was involved in various minor matters involving Mr Chiu and/or his family.  He had the opportunity to observe Mr Chiu on numerous occasions over an extended period of time. Mr Chiu impressed him to be a meticulous, considerate, firm, prudent and logical person.  He appeared to have a composed mind, a consistent and thorough thought process, and was quick in responding to questions.

99.  On the evening of 4 December 2004, Mr Ching was instructed to go to Hong Kong Sanatorium & Hospital.  Upon arrival outside the private room of Mr Chiu, Mr Ching saw him speaking with doctors and nurses. As far as he could observe, Mr Chiu’s mental condition then was no different from when he dealt with him previously.  Mr Chiu spoke with clear and coherent speech. Upon seeing him and the instructing solicitor, Mr Chiu asked them to wait at the conference room outside.  Ms Chan then arrived and joined them. Later, the defendant came out and told them that Mr Chiu had taken some medicine and had fallen asleep.  Mr Ching and the solicitor then left.

100.  In sum, Mr Ching did not perceive any change in Mr Chiu’s mental condition in the years that he dealt with Mr Chiu since April 1998 up to the time of his death on 4 December 2004.

101.  I find Mr Ching a credible witness.  In fact, none of Mr Ching’s observations on Mr Chiu’s mental condition was challenged in cross-examination.  I accept them in full.  I find that insofar as Mr Ching is concerned, there was no perceivable change or decline in Mr Chiu’s mental condition between April 1998 and 4 December 2004.

E.3.b     Mr Lam

102.  Mr Lam, an estate agent, worked in the Baguio Villa (Hong Kong District) branch of Midland Realty at the material times, first met Mr Chiu in around March 1997. He had since carried out a number of deals for Mr Chiu over the years.  Between December 2002 and July 2003, Mr Chiu bought five properties each in Baguio Villa and Estoril Court through Mr Lam.  During that period of time, Mr Lam and his colleagues went to Flat 6C to obtain cheques and deliver agreements for Mr Chiu to sign on numerous occasions.  Referring to two of those transactions in Baguio Villa, Mr Lam said that Mr Chiu had the ability to see through the mind of the vendors and strike the deals at the exact price that he wanted.  Referring to another transaction in Estoril Court, Mr Lam said Mr Chiu was not at all sluggish and preferred to close a deal immediately.  He instructed Ms Chan to put pressure on them and would keep an eye on the progress.  Under cross-examination, Mr Lam agreed that it was Ms Chan who effectively dealt with him during the course of negotiations.  The agreements that he took to Flat 6C for Mr Chiu to sign were standard agreements that Mr Chiu was familiar with. Sometimes Mr Chiu even did not inspect the property himself.  He trusted in Midland Realty and was already in the habit of dealing with Mr Lam and his colleagues.

103.  Mr Lam said he admired Mr Chiu’s ability to foresee in the market and his decisiveness in his purchases.  He estimated that the values of the properties that Mr Chiu bought in Baguio Villa and Estoril Court must have doubled or tripled.  He respected Mr Chiu for his way of doing business.

104.  Mr Lam impressed me to be a credible witness.  I accept his evidence in full.

105.  In my view, the fact that Mr Chiu was capable of and in fact had been carrying out property investments between December 2002 and July 2003 in the way as Mr Lam had described clearly demonstrates that he was as shrewd as usual.  This is another strong indicator that Mr Chiu did not suffer from any mental illness at the time.

E.3.c.    Mr Hui

106.  Mr Chiu was all along a client of Ho & Ho & Company, Certified Public Accountants, which was his tax representative and provided him with tax services and advice.  Mr Hui was a partner of Ho & Ho between 1994 and late November 2002.  After his departure from Ho & Ho, Mr Chiu continued to engage Mr Hui to deal with his tax matters.

107.  Between 2002 and 2004, Mr Hui was handling Mr Chiu’s tax affairs for the purpose of a review of his tax return by the Inland Revenue Department.  He had had frequent contacts with Mr Chiu since January 2002.

108.  Between January and March 2002, Mr Hui had several meetings with Mr Chiu on his tax matters.  He took instructions from Mr Chiu.  Mr Chiu behaved normally.  He articulated fluently and responded promptly and his mind was clear.

109.  Mr Chiu had to attend a meeting with the IRD on 4 March 2002.  He had to verbally describe his financial status and personal background.  The meeting was crucial procedure in the investigation by the IRD.  It required Mr Chiu’s own participation and disclosure of the financial status in person.  Mr Hui therefore carried out 2 rehearsals with Mr Chiu, which lasted around 2 hours.  Mr Hui put forward to Mr Chiu all questions that would be possibly raised by the IRD, beginning with his financial status some 7 years ago.  He also explained the questions to him and took instructions.  Mr Chiu answered the questions fluently.  His thought was clear.

110.  On 4 March 2002, Mr Hui accompanied Mr Chiu and the defendant and Ms Chan to attend the meeting with IRD.  Mr Chiu performed satisfactorily and generally answered all the questions raised by IRD as rehearsed.  He detected nothing peculiar about Mr Chiu’s mind at the time.

111.  Under cross-examination, Mr Hui was referred to the record of interview of the said meeting and a follow-up letter that Ho & Ho sent to IRD on 8 May 2002.  He readily accepted that some information contained in the interview record was incorrect.  However, I accept his evidence that the mistake was made by the IRD in recording the information during the meeting, which was clarified by the follow-up letter.  He was also asked about the use of a flat on Victoria Road as an office.  Mr Hui said that the information would have been provided to IRD by Ms Chan directly.  So if it was a mistake, it was probably not Mr Chiu’s.

112.  In 2003, Mr Hui reported the progress of the tax return review to Mr Chiu from time to time.  Between September and November 2003, he was working particularly hard in order to come up with a settlement with IRD on behalf of Mr Chiu. Mr Hui had contacts with Mr Chiu.  It never occurred to him that Mr Chiu’s mind was in any way abnormal.  He was fast to respond to and understand Mr Hui’s explanation and the strategy to be adopted in the negotiations with IRD.  He even understood some of the technical issues.

113.  In mid-2004, Mr Chiu provided Mr Hui with clear and relevant information and instructions when they had frequent meetings concerning the tax return review. He said Mr Chiu fully understood the contents of their discussions and the progress of the investigation.

114.  The last meeting that Mr Hui had with Mr Chiu was on 8 September 2004.  Mr Hui discussed the settlement scheme with him for about 30 minutes. Mr Hui observed that Mr Chiu, as usual, acted normally and was of good health mentally.  They had pleasant chit-chat together.

115.  To conclude, Mr Hui said Mr Chiu was a rational man with a clear mind. He had independent judgment, an analytical mind and good memory.  He gave clear instructions.  Mr Hui was never in doubt of his mental condition.

116.  I find Mr Hui a credible witness.  His observations of Mr Chiu were not challenged. I accept his evidence in full.

117.  In my view, how Mr Chiu had conducted himself throughout the tax review process between early 2002 and September 2004 is another strong indicator that his mental ability was not impaired in any way throughout that period.

E.3.d.    Mr Tsang

118.  Mr Tsang is the managing director of AA Property Auctioneers Limited.  He first met Mr Chiu in 2000.   He helped Mr Chiu auction 3 properties in Estoril Court and 6 properties in Baguio Villa.  Three weeks before the auction, Mr Tsang met Mr Chiu.  He explained to him in detail the terms and conditions of the standard retainer agreement of AA Property which Mr Chiu had sign.  He followed the explanations very closely and raised certain queries.  After hearing Mr Tsang’s explanation, Mr Chiu signed the agreement.  Mr Tsang found Mr Chiu meticulous, thorough, clam, prudent and logical, with a good memory and clear mind.  His instructions were succinct and precise.

119.  On the day of the auction, Mr Chiu withdrew four properties in Baguio Villa.  He explained to Mr Tsang that he wanted to see if he could fetch a higher price for those four properties by selling them through estate agents.  He was concerned that there might be an adverse impact on the sale price if too many properties in Baguio Villa were put up for sale in the same auction.

120.  In May and November 2000, Mr Chiu attempted to sell his properties by auction again.  Since then, Mr Tsang had not seen Mr Chiu again until about 2004.  Between 2000 and 2004, Mr Chiu called him from time to time to discuss the property market.

121.  In October 2004, Mr Tsang went to Flat 6C.  When he arrived, he saw Mr Chiu playing cards with someone.  Mr Chiu gave him instructions to auction all of his properties as soon as possible.  It surprised Mr Tsang. But Mr Chiu was stern in his instructions.  Mr Chiu further surprised Mr Tsang when he told him that he could adopt the earlier scale of fees.  Surprisingly they might be, I do not think his instructions to Mr Tsang support inferentially any mental problem at the time.  For Mr Tsang went on to say that later, Mr Chiu went to a solicitor’s firm to sign the agreements of auctioning the properties.  Mr Tsang went through the terms and conditions with him.  Mr Chiu was very clear about and had a complete grasp of his explanation.  Mr Tsang said Mr Chiu remained a meticulous, thorough, calm, prudent and logical person throughout, as they first met four years ago.  I can only say that Mr Chiu must have had his own commercial reasons for instructing Mr Tsang in the way as he did.  In any event, this episode took place in October 2004, well after the making of the 2003 Will.  It bears little significance to Mr Chiu’s mental capacity in April to June 2003.

122.  At the eventual auction, none of the properties were sold.  Mr Chiu told Mr Tsang that the poor outcome might be due to his having set the asking price too high.  He suggested that Mr Tsang should devise different sale tactics. That was the last occasion Mr Tsang saw Mr Chiu.

123.  I find Mr Tsang a truthful witness, whose evidence I accept.  This is yet another strong indicator that Mr Chiu did not suffer from any mental problem that might have affected how he conducted his affairs between 2000 and 2004.

E.3.e.    Mr Pak

124.  The remaining independent factual witness is Mr Pak, who was called by the plaintiffs. His evidence can be disposed of shortly.

125.  As noted, he was the legal executive of Messrs Day & Chan responsible for the handling of the 1997 Will.  The last time that he saw Mr Chiu was sometime between November and December 2001. Since then he had seldom met or spoken with Mr Chiu.  In late September 2004, he assisted Mr Chiu in acquiring a property in Estoril Court.  It failed. Mr Chiu appeared to be agitated and made some angry remarks to him over the phone.  Mr Pak was a bit shocked upon hearing that.  It was out of his usual character.  Mr Pak thought Mr Chiu might be really ill in the months before he died.

126.  Mr Pak’s evidence is no more than speculation.  He had seldom met or spoken with Mr Chiu since late 2001.  He had no opportunity to form any meaningful observation as to his mental condition.  Even accepting that Mr Chiu’s reaction in late September 2004 was out of his usual character, an isolated incident of losing his temper cannot possibly sustain any contention that Mr Chiu was ill, physically or mentally.  Further, since this event took place in late September 2004, it has little bearing on Mr Chiu’s mental capacity back in April to June 2003.

127.  I attach no weight to Mr Pak’s evidence.

E.4.   Conclusion on the evidence of the family members and the independent factual witnesses summarised

128.  I find that in the eyes of his family members and the independent witnesses, through their interactions with Mr Chiu and observations of how he conducted his daily and business affairs, Mr Chiu did not exhibit any sign of mental problem or incapacity or deterioration at all times.  This is a strong indicator that in fact he did not have an impaired mind in the months of April to June 2003.

129.  I need to dispose of three points raised by Mr Sarony before moving to the treating doctors’ evidence.

130.  Mr Sarony first submitted that it is the evidence of Dr Huang and Dr Wong that the symptoms of moderate cognitive impairment can easily be missed by laymen.  He seemed to be suggesting that the family members and the independent factual witnesses might have missed the symptoms of Mr Chiu’s impairment.  I cannot agree because it is the plaintiffs’ case that Mr Chiu suffered from significant cognitive impairment.  As I understand the experts’ evidence, significant cognitive impairment is usually accompanied by discernible symptoms which are detectable even by laymen, especially those who lived and closely interacted with Mr Chiu.

131.  Mr Sarony next submitted that none of the independent factual witnesses called by the defendant had actually interacted with Mr Chiu between April and June 2003.  So they were unable to say how Mr Chiu was at the material times.  This submission ignores the evidence of the family members – they could not detect any sign of mental abnormality during those three months.  It also fails to properly recognize the thrust of the factual witnesses’ evidence, which I accept, that Mr Chiu was consistently his usual self with no mental abnormality whatsoever when they came into contact with him over the years.  Any suggestion that somehow Mr Chiu would have had exhibited signs of mental abnormality between April and June 2003 does not make much sense.

132.  Finally, Mr Sarony submitted that making testamentary dispositions requires the highest degree of soundness of mind : Burdett and Another v Thompson, Law Rep, 5 Q.B. 549, per Sir John Hannen.  Even if Mr Chiu was capable of engaging in daily and business activities as described by the defendant and her witnesses, it cannot equate to the degree of soundness required for the valid execution of a will.

133.  What Sir John Hannen had said must be understood properly.  It does not mean that a testator must be in perfect health in order to possess the requisite testamentary capacity.  The authorities make it crystal clear that a testator, despite illness, may still possess full testamentary capacity.  For example, Banks v Goodfellow, supra, itself is a case on partial unsoundness of mind. Another example is Hoff v Atherton, supra.  There, the testatrix suffered from mild to moderate dementia when she made her will.  She was nevertheless found to have had capacity to execute the will.  There was evidence that she had capacity to understand the nature and extent of her estate.  She had discussed financial and business matters with her accountant in a competent fashion not long before she executed her will.  A more recent example is Carr v Beaven [2008] EWHC 2582, (Civ).  The testator had had a stroke and was suffering from mild to moderate dementia when he made the contested will.  Two medical experts concluded that he had testamentary capacity although one of them opined that he lacked capacity when executing another will only a few months before the disputed will.  The court upheld the will, noting that a diagnosis of mild to moderate dementia is not of itself an obstacle to satisfying the requirements of testamentary capacity and that a testator may lack testamentary capacity on a particular day but may possess it months later.  Despite his decline, the testator retained sufficient testamentary capacity when he made the disputed will.

134.  More importantly, Mr Sarony’s submission completely ignores the evidence of the experts, including the plaintiffs’, that Mr Chiu’s ability to carry out daily and business activities as described is cogently relevant to the issue of testamentary capacity.

E.5.   The treating doctors’ evidence

135.  The next batch of evidence on Mr Chiu’s mental state comes from his treating doctors, Dr Tse, Dr Ng and Dr John Ma (“Dr Ma”).  Having treated Mr Chiu for years, the doctors were in an excellent position to assess Mr Chiu’s mental state.  This is particularly so in Dr Tse’s case because of his expertise in neurology.  In short, they found no symptom of mental deficiency.  Mr Sarony submitted that that none of the treating doctors had the benefit of a clinical overview such as has been collated for the purpose of these proceedings and because of their specialized focus none of them were actually examining Mr Chiu for signs of impairment of his cognitive function.  I disagree.  If Mr Chiu did show any sign of impairment of his cognitive function, I do not think it would have escaped the treating doctors, especially Dr Tse, an experienced and renowned neurologist with over 20 years of experience, who is well trained to detect symptoms of mental problems.

136.  I now discuss their evidence in greater detail.

E.5.a.    Dr Tse

137.  Dr Tse is attended Mr Chiu between 30 June 1998 when Dr Ng made the referral and 17 November 2004.

138.  On 29 June 1998, Mr Chiu was hospitalized after a minor stroke.  Dr Tse saw him on the following day.  He prescribed to Mr Chiu various drugs for, among other things, prevention of stroke and headache.  Mr Chiu was discharged on 3 July 1998.

139.  According to his medical notes, between June 1998 and May 2004, Dr Tse saw Mr Chiu at his clinic for 14 times and 5 times at Hong Kong Sanatorium & Hospital.  On 7 November 2001, Mr Chiu was hospitalized. He was suspected of possible transient ischemic attack.  He was discharged on the following day.  Between 12 and 15 December 2002, Mr Chiu was again hospitalized.  Dr Tse’s diagnosis was Meniere’s disease.  The MRI brain scans in November 2001 and December 2002 did not show any infarct.  In respect of the magnetic resonance (“MR”) brain scans and MR angiograms taken between June 1998 and December 2002, there was no significant interval change between the MRI brain scans and there was no new stroke.  The ventricles were normal and there was no mention of cerebral atrophy.  The MR angiograms showed some increase in stenosis in the left posterior cerebral artery.  Dr Tse performed a neurological examination and found that Mr Chiu had no neurological deficit.  Dr Tse concluded that Mr Chiu remained neurologically stable with no stroke recurrence.

140.  Dr Tse listed out the drugs that he had prescribed to Mr Chiu between January 2003 and July 2003.  They were for stroke prevention and headache.  Dr Tse was not aware of any cognitive side effect suffered by Mr Chiu from these medications.

141.  Mr Chiu consulted Dr Tse again on 31 May 2004.  He again carried out a neurological examination on Mr Chiu and found no neurological deficit.

142.  Dr Tse said based on his knowledge of the medical condition of Mr Chiu and his observation of Mr Chiu throughout 1998 to 2004, there was no clinical feature that suggested Mr Chiu suffered from dementia or cognitive impairment.

143.  Dr Tse was cross-examined principally on two matters.  They are of little moment for present purposes and can be disposed of very shortly.  Dr Tse was first asked if Mr Chiu actually had another brainstem ischemia in December 2002 as opposed to Meniere’s disease.  Dr Tse explained cogently why he ruled that out.  I accept his explanation.  But even if I were wrong, it does not really matter.  For it is Dr Tse’s evidence, which is not contradicted by any expert evidence and which I accept, that a brainstem ischemic incident, apart from making Mr Chiu dizzy and vomit, would not have affected his normal cognitive function at all.  Dr Tse was next asked if it was possible that Mr Chiu died of another severe infarct in the brain on 4 December 2004.  He ruled out that possibility because even very severe cerebral infarction or hemorrhage would not have caused sudden death.  Again I accept Dr Tse’s explanation.  And even if I were wrong, the actual cause of Mr Chiu’s death has nothing to do with any of the main issues before me.

144.  I accept Dr Tse’s evidence in full, which demonstrates convincingly that Mr Chiu had not suffered from any mental incapacity since he first consulted Dr Tse in June 1998 up to the last consultation in November 2004.

E.5.b.    Dr Ng

145.  A general practitioner, Dr Ng is neither a neurologist nor a psychiatrist.

146.  As the treating doctor, Dr Ng, in his witness statements, gave a summary of Mr Chiu’s medical history since 1998 up to the time of his death in December 2004. He also dealt with the cause of Mr Chiu’s death and the mistake in the Certificate.  These matters are not uncontroversial.  On 1 November 2004, he recommended that Mr Chiu should consult Dr Ip Yan Ming, a psychiatrist, for a second opinion on his chronic anxiety and insomnia.  But Mr Chiu declined.  He added under cross-examination that his recommendation was prompted by Mr Chiu’s then anxiety level, not by his behavior.  Dr Ng said over the years, he did not find that Mr Chiu showed any sign of abnormality or lack of clarity of mind.  On the contrary, his experience of Mr Chiu had been that he was always mentally sound and astute.

147.  In his oral testimony, Dr Ng added that during his encounters with Mr Chiu either in the hospital or his clinic over the years, Dr Ng had never found any difficulty on Mr Chiu’s part in relaying complaints to him.  Nor had there ever been signs of Mr Chiu having problems making judgments or understanding what Dr Ng said to him.  In all his experiences, Mr Chiu was coherent all along.  Dr Ng had never detected any sign of delirium or psychosis on the part of Mr Chiu.  Nor did he detect any sign that Mr Chiu had any impairment of cognitive function, memory or judgment either through side effects of drugs or any other cause during the times he was treating Mr Chiu. The chance of the synergy of all the drugs that Mr Chiu took having a strong effect on him by 2003 was, according to Dr Ng, remote because he had been taking the medicine for a long time.

148.  Referring to the period between March 2003 and December 2004 when Mr Chiu was hospitalized on various occasions under his care, Dr Ng said when Mr Chiu stayed overnight in the hospital, Dr Ng visited him two times a day.  He asked Mr Chiu about his complaints and had social conversations with Mr Chiu. Mr Chiu was his usual self.  Between June 2003 and December 2004, Dr Ng did not at any time notice or detect that Mr Chiu was any different from the previous times which he had seen him for many years in terms of mental ability, mental awareness, ability to make judgment and cognitive power.

149.  I accept Dr Ng’s evidence in full.  It shows cogently that throughout the 18 years that Mr Chiu had consulted Dr Ng, he did not suffer from any mental incapability or deterioration at any time.

E.5.c.    Dr Ma

150.  Dr Ma is a specialist in endocrinology, diabetes and metabolism.  He summarized Mr Chiu’s clinical history and his observations of his mental state in a letter dated 21 August 2008.  He was not called.

151.  According to Dr Ma, Mr Chiu attended his clinic between 7 March 1997 and 1 June 2004 because of his diabetes, hypertension and hyperlipidemia.  His control over the years was less than satisfactory. His attendance between 1997 and 2001 was more regular, ranging from 5 to 7 occasions. In 2002, he attended once in January, June, July and December.  In 2003, he only attended once in January.  He attended in January 2004 and lastly on 1 June 2004.  Dr Ma found Mr Chiu a mysterious figure who talked little about himself or his work.  He was quiet but gave the appearance that he was in control of all his faculties and there was no suggestion that, during his medical appointments, he was of unsound mind.

152.  Dr Ma’s clinical observation of Mr Chiu’s mental state, which I accept, is entirely consistent with Mr Tse’s and Dr Ng’s.  

E.6.   The mental state examination performed by Dr Ng

153.  Dr Ng wore another hat as the doctor who certified Mr Chiu’s testamentary capacity before he executed the 2003 Will on 5 June 2003.  When Ms Chiang asked Dr Ng and Mr Chiu if they knew why Dr Ng was required to be present, Dr Ng remarked jokingly that “I want to make sure that [Mr Chiu] was not insane.”  Both Dr Ng and Mr Chiu then burst out into laughter.

154.  This small episode is significant for three reasons.  First, the fact that Mr Chiu was amused by Dr Ng’s remark does not suggest a mind which was defective or deficient.  Second, Dr Ng’s remark is entirely consistent with his observations of Mr Chiu over the years that he had found nothing wrong with him mentally.  Third, it shows inferentially that Dr Ng might not have taken the task of assessing Mr Chiu’s testamentary capacity as seriously as he should have.  This explains why, as will be seen in a moment, the so-called mental state examination that Dr Ng performed on Mr Chiu to assess his testamentary capacity was far from satisfactory.

155.  It was stated in his first witness statement dated 24 January 2006 that Dr Ng prepared it according to his recollection of the events and with the aid of his review of the contemporaneous records.  He said he performed an examination on Mr Chiu on 5 June 2003 and thereafter signed the Certificate to certify that he possessed the mental capacity to sign a will.  He did not give any details about the examination at all.

156.  In his second witness statement dated 11 May 2010, Dr Ng added that at the time of his examination on 5 June 2003, Mr Chiu was in a stable condition.  The examination included a mental state examination.  Mr Chiu’s appearance, behavior, tone and speech were entirely normal.  He was fully conscious and orientated in time, place and person.  He had normal power of concentration, understanding and expression.  Dr Ng said that based on the examination, he was satisfied that Mr Chiu was of sound mind and he issued the Certificate accordingly.

157.  The very brief account in the two witness statements hardly amounts to any meaningful evidence of a proper mental state examination that supports the conclusion Dr Ng stated in the Certificate.

158.  In the course of the trial, Dr Ng produced a third witness statement dated 28 February 2011.  There he gave fuller details of the examination :

“3. I conducted the examination when Mr Chiu, his wife [i.e. the defendant] and I were waiting at the waiting area of the office of Messrs. Deacons. This consisted of verbal exchanges between myself and Mr Chiu with a view to forming my judgment on his mental capacity. As a result of this examination, I was able to establish the following:-

(a) Mr Chiu appeared perfectly normal during the exchanges and no sign of any abnormality in appearance was detected. Further, he did not appear in any way different from the numerous encounters I had had with him as his physician for over 10 years.

(b) Mr Chiu’s behavior throughout the exchanges demonstrated clearly to me that he was calm, conscious and in full possession of his mental faculties without any sign of delirium whatsoever.

(c) Mr Chiu’s speech was coherent and his responses to my questions showed that he was completely orientated in time and place, and knowing full well the persons (including myself) he was interacting with.

(d) Mr Chiu was in a stable mood – he was neither depressed nor elated. There was no abnormality in his perception, and in particular he did not suffer from any auditory or visual hallucination.

(e) I specifically questioned him on subject matters he was familiar with. I knew that he was very keen on stock investment, so much so that he would carry his hand-held real-time stock quotation device with him at all times, even when he was in the hospital bed at the hospital. Stock investment was also a topic of common interest between Mr Chiu and myself, and one which was canvassed not infrequently in my conversations with him during his past visits to clinic, so I knew how he normally would respond to questions of this nature. On this occasion, I specifically mentioned 3 stock codes, namely, 0005, 0016 and 0941, and asked him about their performances in one of my questions. (0005 is HSBC Holdings, 0016 Sun Hung Kai Property and 0941, China Mobile). I asked him whether it was a good time to hold, sell or buy those stocks. Mr Chiu shared with me his views on each stock, one after another and at some length. The fact that he was able to give an account of his views on each stock one after another without prompting by me suggested to me that his short-term memory was sound. Further, he spoke coherently and articulately, and the views that he expressed were well informed and fully rational.

(f) I also asked him about the real estate market. He said it was a good time to invest, and explained to me why. He turned out to be correct.

(g) In his answers to me, he also showed that he had the normal power of concentration, understanding and expression.

(h) During the time of the examination, Mr Chiu asked me how I got to the office of Messrs Deacons. I replied that I went there by car. He asked me whether it was the same Mercedes Benz he saw me in before. He knew this because he had seen me in the same car a number of years ago. The correctness of this observation demonstrated to me that Mr Chiu’s long-term memory was also sound.

4. My mental state examination lasted for about 20 minutes before we were attended by Mr Chiu’s solicitors. Mr Chiu was coherent and rational throughout and had at all times displayed full mental alertness and capability, no different from the Mr Chiu I had known for over 10 years in the past. As a result, I was able to conclude, as I did in paragraph 20 of my supplemental witness statement, that Mr Chiu was of sound mind and I issued the medical certificate accordingly.

5. Mrs Chiu was present throughout the mental state examination.”

159.  Under cross-examination, Dr Ng added that the mental state examination involved testing the analytical power and long/short term memory of Mr Chiu.  He was able to assess that Mr Chiu was completely orientated in time and place and knowing full well the persons he was interacting with.  His speech was coherent in responses.  He was in a stable mood, neither depressed nor elated.  There was no abnormality in perception.  He did not suffer from any auditory or visual hallucination.  He spoke coherently and articulated his views on the stocks well, which Dr Ng found to be well informed and fully rational.

160.  Numerous criticisms concerning the mental state examination that he performed on Mr Chiu were put to Dr Ng during cross-examination, raised by the plaintiffs’ experts and advanced by Mr Sarony in his closing submissions.  Mr Sarony, in particular, submitted that Dr Ng had failed to follow the standard professional practice required of a doctor who is tasked to perform the mental state examination for a testator as prescribed by the Guide.  I think I only need to mention two major points to explain why I find Dr Ng’s evidence on the examination most unsatisfactory.

161.  First, contrary to what he had apparently stated in his witness statements, Dr Ng admitted, under cross-examination, that he did not keep any attendance notes of the examination that he conducted on Mr Chiu.  In other words, all the details of the examination, which took place some 8 years ago, came from his memory. 

162.  In Kenward v Adams, The Times, 29 November 1975, Templeman J (as he then was) laid down what is later commonly referred to as the golden rule : When a solicitor is drawing up a will for an aged testator or one who has been seriously ill it should be witnessed or approved by a medical practitioner, who ought to record his examination of the testator and his findings.  Mr Sarony submitted that golden rule applies here.  Although Mr Chiu was 54 when he made the 2003 Will, by virtue of his unhealthy condition and the fact that he was abusing his body, in terms of biological age, he could not excluded from the category of older adults.  The debate whether the golden rule applies is academic.  For Dr Ng had in fact been asked to perform a mental state examination on Mr Chiu.  In my view, whenever a medical practitioner is asked to perform a mental state examination on a testator, whether he is aged, infirm or not, he should always keep a proper record of his examination and his findings.  He is not doing his job properly if he does not.  His failure does not invalidate the contested will invalid.  But it does render the retrospective assessment of the examination that he had performed on the testator in subsequent legal proceedings exceedingly difficult, if not impossible.  Here, absent such attendance notes, no meaningful, objective evaluation can be carried out on Dr Ng’s recollection of the details of the purported examination that he performed on Mr Chiu and more importantly its adequacy.

163.  Dr Woo, the defendant’s neurologist, said that through the interaction with Mr Chiu, Dr Ng was able to obtain information on how he held the information, analyzed the information and gave an opinion.  Dr Woo said that the part of the brain that is required to perform these functions – retrieval of information, working memory, holding the information, concentrating and answering questions back and forth, giving an opinion, comprehending what is going on, knowing the risks and so on – are exactly “the same part of the brain that we use for testamentary capacity”.  However, Dr Woo accepted that his opinion is based on accepting Dr Ng’s evidence without qualification.  It begs the question : in the absent of proper attendance notes, how can one objectively assess if what Dr Ng had said from his memory about the examination is reliable, let alone accepting it?  Dr Woo’s attempt to salvage Dr Ng’s evidence in this respect is rejected.

164.  Second, Dr Ng said his mental state examination is specifically tailor-made for Mr Chiu. As accepted by Dr Woo, Mr Chiu’s decision to revoke the 1997 Will and to disinherit all his children (the 9 Children specifically) was a material change of testamentary wishes.  A responsible doctor required to certify Mr Chiu’s testamentary capacity would need to have that information available because he would need to ascertain the reason for this from Mr Chiu.  But Dr Ng simply did not bother to inquire about the existence of a previous will or question the disinheritance.  On this point, even Dr Woo could not offer any help.  He said, “I certainly can’t vouch for Dr Ng.”

165.  In my view, the mental state examination that Dr Ng performed on Mr Chiu to assess his testamentary capacity is materially deficient.  I will therefore attach no weight to the examination or the Certificate.

166.  However, the fact Dr Ng had not performed the mental state examination satisfactorily thereby rendering the Certificate useless does not detract from his long-term observations of Mr Chiu’s mental condition, which, as I have accepted, are extremely useful and relevant to Mr Chiu’s testamentary capacity at the time.  It does not affect my earlier finding at para. 149 above either.

E.7.   Interactions between Ms Chiang and Mr Chiu

167.  I will detail the meeting between Ms Chiang and Mr Chiu on 5 June 2003 when I come to the question of knowledge and approval.  For present purposes, I only need to mention the following points emerging from her interactions with Mr Chiu which are relevant to his testamentary capacity.

168.  First, according to Ms Chiang’s impression, Mr Chiu was very quiet.  He responded to her advice on the 2003 Will by nodding or a simple yes.  Dr Wong, the plaintiffs’ psychiatrist, opined that Mr Chiu was hypoactive, which is a symptom of bereavement.  As I will explain when I deal with Dr Wong’s evidence below, I find no bereavement which affected Mr Chiu’s testamentary capacity.

169.  Second, it was Ms Chiang’s evidence that the specific instructions that she received from Ms Chan was that the only children Mr Chiu had were the 9 Children and Man Ho.  At the meeting, although she could not recall the exact conversation she had with Mr Chiu, she assumed that had he got other children, he would have let her know.  The gist of her evidence is that Mr Chiu did not tell her that he had some other children although he was not going to provide for them in the 2003 Will.

170.  Mr Sarony submitted that if the specific instruction that he only had the 9 Children and Man Ho had come from Mr Chiu, it shows that he had forgotten his other children.  It evidences his inability at that point in time to even recall all those who might reasonably be expected to be the beneficiaries of his bounty, that is, all his children.  Such evidence would be a strong indicator of cognitive impairment.

171.  Whether or not Ms Chan had accurately conveyed Mr Chiu’s instructions to Ms Chiang is relevant to the question of knowledge and approval, and not testamentary capacity.  I will return to this point later when I come to Issue 3.  As to why Mr Chiu had not told Ms Chiang that he had other children other than the 9 Children and Man Ho, various reasons may exist and I do not want to speculate.  But I do not think it is of itself sufficient to show significant cognitive impairment when all the evidence concerning Mr Chiu’s mental state is considered in the round.

172.  Third, Mr Sarony complained that Ms Chiang had failed to follow the professional guidance for lawyers handling a will as set out in the Guide. I do not think it really takes the plaintiffs’ case any further even if the complaint is sustained.  For what happened at the meeting on 5 June 2003 is not the only piece of evidence on Mr Chiu’s capacity. Even assuming (without deciding) that Ms Chiang had failed in her duty and no weight should be attached to her evidence insofar as capacity is concerned, there is still abundant proof of Mr Chiu’s testamentary capacity based on other available evidence.

E.8.   Irrationality of the 2003 Will

173.  I next turn to irrationality of the 2003 Will.

174.  To recap, the thrust of the plaintiffs’ contention is that there is simply no reason why Mr Chiu would disinherit all his children, especially those who had not offended him.  The irrationality exposes the want of testamentary capacity on his part.

175.  The defendant counters by contending that the 2003 Will is rational, given the long standing husband and wife relationship between Mr Chiu and her and the complete disinheritance of the 9 Children was the consequence of material deterioration in the parent-child relationship brought about by the Chi Fu Incident and the Sheung Ping Dinner.

176.  The decision of complete disinheritance of the 9 Children has to be viewed and evaluated with the following factors in mind :

(1)     Mr Chiu’s personality;

(2)     Mr Chiu’s relationship with the defendant, the sole beneficiary under the 2003 Will;

(3)     Mr Chiu’s relationship with Ms Wong and the 9 Children, and in particular, the effect, if any, of the Chi Fu Incident and the Sheung Ping Dinner on the relationship.

If Mr Chiu’s decision to disinherit the 9 Children completely is explicable by these factors, individually or collectively, then it is not irrational.  If not, then it is plainly irrational.

E.8.a.    Mr Chiu’s personality

177.  The evidence from Mr Chiu’s family members and the independent factual witnesses reveals a multi-facet figure with very peculiar personality traits indeed.  He is by no means an ordinary man.

178.  He was a very traditional Chinese man not given to gender equality.  This is best seen from the provisions that he made in the 1997 Will.  He favoured his sons more than his daughters.

179.  He possessed the usual quality of an astute and successful businessman.  He had a clear, logical and responsive mind.  He was articulate.  He was firm in his instructions.  He was prudent, according to Mr Ching.  But obviously, he also had a taste for excitement.  He engaged in stock trading actively and liked gambling a lot.  With his wealth, he also knew how to enjoy life.  He travelled quite often and indulged in horse racing and Cantonese opera.  He was undoubtedly proud of his success, something that he kept on boasting about before his children. 

180.  He had a very strong and domineering personality, bothering on being autocratic.  He was chauvinistic, temperamental and irritable.  He must always have his own ways and was intolerant of anyone who dared to challenge his authority.  He expected absolute respect and obedience from all his family members, not only from the children but also from his women.  He would react most strongly if he was not shown respect.  To use Man Fu’s description, he was awe-inspiring.  Even Man Shan, who appeared to be the more vocal among the plaintiffs, dared not go against his father.  Man Ying also said she would listen to him and would not retort or disrespect him.

181.  He was not always fair.  Man Lun said he would throw a tantrum without listening to what was being said to him.  He was quick-tempered who might overact without hearing both sides of the story.  Further, he could behave rather disproportionately when upset especially when he was shown disrespect.  The defendant referred to several incidents which demonstrated that he was not known to value fairness or proportionality in his dealings with third parties. On one occasion, the security guard of Estoril Court made some verbal abuse to Mr Chiu. Although it was on any view a trivial matter, Mr Chiu threatened to sue the management company, eventually leading to the termination of the security guard’s employment.  On another occasion, a solicitor showed what Mr Chiu perceived to be disrespect to him at a meeting.  Mr Chiu switched all his businesses he had been giving to the firm to Messrs Deacons.  However, when a bank failed to keep its promise to grant a mortgage to him, Mr Chiu not only cancelled the transaction forthwith, but also transferred all the conveyancing businesses from Messrs Deacons to another firm, although Messrs Deacons had nothing to do with the bank’s failure to provide the mortgage.  When an estate agent failed to return phone calls placed by him, Mr Chiu immediately switched all his businesses to another agent.  Another telling example of the lack of fairness and proportionality on Mr Chiu’s part is his decision to sever his father and son relationship with Man Fu soon after Ms Wong’s death.  Man Fu said he was not surprised when he learnt that he father wanted to do so.  He agreed that Mr Chiu’s character was such that he was capable of doing that sort of thing.  Mr Chiu apparently held Man Fu responsible for the Sheung Ping Dinner, which is clearly not justified objectively on the evidence before me.  These incidents showed that Mr Chiu was self-centered, autocratic, intolerant and capable of being vengeful.

182.  While he might be quick-tempered at times, the defendant said Mr Chiu was the type of person who did not let his feelings known openly.  If he harboured any discontent, he would not let it be known.  He showed it by action.  For example, he would suddenly sack a professional he had been using and the profession would not know what mistake he had made to deserve such treatment.

183.  It does not mean that Mr Chiu is just a despot showing no feelings, affections or care towards his family members.  All the plaintiffs recalled that he was a doting father who spared no effort in providing for them.  Man Fung, the runaway eldest daughter, recalled that Mr Chiu had come to her rescue time and again in the past.  Man Ying in particular recalled that after Ms Wong had a major operation in 2000, he asked her to stay in Flat 6C.  He also showed his genuine care and concern to Man Fu, who was distressed by Ms Wong’s suicide, by comforting him over the phone when Man Fung called to break the sad news to Mr Chiu on 24 April 2003.

184.  Plainly, Mr Chiu’s peculiar and complicated personality explains why he had so conducted himself in the circumstances leading to the 2003 Will.

E.8.b.    Mr Chiu’s relationship with the defendant

185.  Their intimate relationship started in early 1980s and flourished soon thereafter. The defendant was pregnant with Man Ho in 1989 when Mr Chiu was separating from Ms Wong.  Since 1991, they had lived as man and wife under one roof, wherever that might be.  On every single trip abroad, Mr Chiu always took the defendant with him.  She always accompanied him when he was hospitalized.  On the trip to Thailand in April 2003, when Mr Chiu ran out of medication, it was the defendant who flew back to Hong Kong to obtain the medication for him. Significantly, she, upon Mr Chiu’s suggestion, changed her name by adopting his surname and Kwan Ying, the name of the taxi company from which Mr Chiu began his business success.  Mr Chiu introduced her to others as his wife.

186.  The defendant was more than a wife or companion.  She helped him in managing his finances.  Of all the women in his life, the defendant alone shared joint and investment accounts with him.  She was also responsible for issuing cheques for all transactions and accompanied him to appointments with professionals such as doctors, lawyers and accountants.  Mr Chiu also communicated with others through the defendant.

187.  The defendant was entrusted with the responsibility of overseeing Mr Chiu’s household, taking care of the children who resided with them, including Man Ying. When Man Shan got married in December 2000, the newly-wed followed the Chinese tradition of offering tea to their parents at Flat 6C.  It is telling to note that on that occasion, Ms Wong, the natural mother of Man Shan, was not present.  Instead, the defendant was there and was offered tea as if she were the mother of Man Shan.  This inferentially showed the defendant’s unique and important status in Mr Chiu’s large household.  Ms Chan and Ms Lam also regarded her as the head of the family after Mr Chiu’s death.

188.  The defendant was evidently regarded by Mr Chiu as his dear wife, though they were never married and he had had relationships with other women, as the co-head of his enormous household and as a highly trusted partner in his financial and personal matters.

189.  It is true that Mr Chiu did not make any provision for the defendant under the 1997 Will.  The lack of provision for the defendant under the 1997 Will did not detract from Mr Chiu’ relationship of affection and trust with the defendant.  For it is readily explicable by the fact that as a very traditional Chinese man, Mr Chiu did not see it necessary to make any provision for all the women of his life, including the defendant, whether he was close to them or not.  Another possible reason is that as the defendant could, upon his death, take benefit from the joint accounts held by them, where enormous amounts of money were sitting, it would not be necessary to provide for her specifically.  It is also important to note that Mr Chiu appointed the defendant together with Man Fu as the executors under the 1997 Will.  This is entirely consistent with the trust that he reposed in her.

190.  Given their relationship and the defendant’s important status in his life, naming her as a beneficiary under the 2003 Will is perfectly understandable.  So is her evidence, which I accept, that Mr Chiu instructed her to take care of Ms Chan and Ms Lam and their children out of the assets gifted under the 2003 Will and to decide whether and how to provide for the 9 Children if they behaved themselves and did not cause trouble.  What is said to be irrational is the decision to disinherit the 9 Children.  This brings me to the next important subject.

E.8.c.    Mr Chiu’s relationship with Ms Wong and the 9 Children

191.  The parties’ evidence on these matters is most controversial.  I would like to preface the discussion by two observations.

192.  First, under the 1997 Will, Mr Chiu made no provision for all his women.  He gave his estate to his children albeit with preference to his sons.  His testamentary arrangement was not affected by his relationship with his women or children at all, whatever it might have been.  His relationship with the defendant is the best example.  Notwithstanding her importance in his life, he did not provide for her.  His relationship with Man Fung is another example.  Man Fung had left home as early as in the mid 1980s.  As I have already alluded to, according to what Man Fung said at one of the taped telephone conversations, Mr Chiu had come to her rescue previously.  But there is no evidence to suggest that he had otherwise maintained her or kept a close relationship with her.  Notwithstanding that, Mr Chiu provided for her in the 1997 Will.  The same is true for Man Ching who left a few years after their parents’ divorce.  There is no evidence that Mr Chiu had a close relationship with her.  Yet he provided for her under the 1997 Will.

193.  Thus whatever his relationship with Ms Wong and the 9 Children before the 1997 Will was, it had not affected his testamentary wishes there and then.

194.  Second, the parties’ evidence spanned over 15 years since the divorce of Mr Chiu and Ms Wong, touching on various matters, big and small.  I need not go into every single dispute about facts or submissions made by counsel. Suffice it to say that I have already considered all the evidence, both written and oral, in full with care.  I will concentrate on the more pertinent points.

195.  In gist, the defendant said the relationship between Mr Chiu and Ms Wong was never cordial after their divorce.  She frequently came to pester Mr Chiu for moneys.  She used all sorts of tricks to ask for moneys, even threatening to commit suicide.  Under such pressure, Mr Chiu gave her moneys to pacify her.  Worse still, in an apparent effort to take revenge for her failed marriage, Ms Wong had instigated the 9 Children to run against Mr Chiu and her.  She instilled into the 9 Children a belief that they were entitled to ask Mr Chiu for money whenever they wanted.  Consequently, the relationship between Mr Chiu and the 9 Children had been strained.  The defendant then referred to the Chi Fu Incident and said that Mr Chiu was upset by the farce.  He was angry with Ms Wong and became disillusioned with the 9 Children who always sided with Ms Wong against him. Because of the seeds of dissension sowed by Ms Wong in the 9 Children, they were also rebellious.  When Man Tan got married in 1999, neither she nor any of the 9 Children notified Mr Chiu.  He felt that they did not regard him as their father.  In around 2000, Mr Chiu commenced HCA1548/2000 against Ms Wong for their loss suffered as a result of her default in repayment of her loan owed to Belgian Bank for which Mr Chiu and the defendant acted as guarantors.  The action was withdrawn when on further thought Mr Chiu did not want to incite Ms Wong to harass them.  Mr Chiu had indicated to the defendant that since about the end of 1999 that he wanted to make a new will which would impinge upon the benefits of the 9 Children.  He did not make up his mind until after Ms Wong’s suicide.  She then dealt with the Sheung Ping Dinner.  She said Mr Chiu and she were treated by the 9 Children and their uncles with utmost hostility and disdain.  His relationship with the 9 Children became completely shattered.  It was apparent that they blamed Mr Chiu and her for Ms Wong’s suicide.  Mr Chiu was extremely infuriated and was deeply insulted by them in public.  Consequently, he firmed up his mind and decided to make the 2003 Will.

196.  The thrust of the plaintiffs’ evidence is quite to the contrary.  They said Mr Chiu and Ms Wong had remained cordial after their divorce.  Mr Chiu had all along been a caring father, taking care of their needs.  The Chi Fu Incident arose because of misunderstanding and was soon settled.  During the Sheung Ping Dinner, the children who were present were all very upset.  They however did not show any disrespect to Mr Chiu.  He comforted them and left after leaving some money for Ms Wong’s funeral.

197.  In my view, the parties’ respective portrayal of the relationship between Mr Chiu and Ms Wong generally is not entirely correct.  Their true relationship lied somewhere between the two extremes.  That is to say, they were at times cordial but tensions did exist between them.

198.  Their tensions peaked when the Chi Fu Incident took place.  Their relationship was obviously strained.  On any view, the Chi Fu Incident was a storm in the teacup between Ms Wong and Ms Chan.  Unfortunately, it had blown out of proportion.  Police were called.  A barrister, that is, Mr Ching, was instructed.  Ms Wong took the 3 youngest plaintiffs away.  They did not attend school for some days thereafter.  Ms Chan had to make a missing person report to the police.  On 12 October 1999, Ms Wong’s solicitors wrote to Mr Chiu, alleging that he had been neglectful in his duties and the custodial parent and ill-treatment on the children by Ms Chan. Mr Chiu engaged a private investigator to keep surveillance on Ms Wong to ascertain the whereabouts of the 3 youngest plaintiffs, which lasted between 12 October and 5 November 1999.  Mr Chiu also asked Ms Lam to install a recording device to record calls made by Ms Wong and her children.

199.  In my view, what Ms Wong had done must have deeply offended Mr Chiu.  It must have distressed and antagonized him.  The serious accusations of neglect must have injured his pride.  He was indeed infuriated.  So much so that according to Mr Ching, whose evidence I accept, Mr Chiu told him over the phone when he was at Unit 5C that he was extremely upset about the conduct of Ms Wong and some of her children.  He even told Mr Ching that he had made a will previously and now wanted to change it.  Ms Chan said she heard that Mr Chiu also said he wanted to change his will so as not to leave any penny to the 9 Children.  Mr Ching said because of the passage of time, he could not recall if Mr Chiu did say so but he might have said something to that effect.  I find on balance of probabilities that Mr Chiu did say so.

200.  An important point arose, which reflects a very peculiar trait of Mr Chiu’s personality.  Ms Wong, together with Ms Chan, was the one who stirred up the farce.  On any view, her children, especially those who were not present and Man Ying, who were then only 9, could not be said to be the trouble-makers.  Yet Mr Chiu was so infuriated that he said he wanted to disinherit all the 9 Children.  This shows that when deeply offended he could easily become biased and prejudiced.  He could vent his spleen against someone who was completely innocent.  It is true that Mr Chiu did not actually disinherit the 9 Children there and then. This is understandable because after all he was a very traditional Chinese man who wanted all his children to benefit from his wealth.  It would be a very drastic action to disinherit them all.  He might well wish to consider it more carefully.  However, it does not mean that he had completely forgotten about the Chi Fu Incident.  As I will demonstrate below, the prejudice that he had against the 9 Children arising from the Chi Fu Incident very much remained despite the passage of time. 

201.  Another important point emerged, which is this.  There is no suggestion whatsoever that Mr Chiu had any mental problem when the Chi Fu Incident took place.  In other words, he had the requisite testamentary capacity to disinherit the 9 Children if he had actually done so there and then.  So although it might well be said that he would be most unfair, unreasonable and even prejudiced if he were to disinherit the 9 Children right after the Chi Fu Incident, such irrationality alone is no evidence that he lacked testamentary capacity.  It is just something he could do if he so wished, something which is perfectly explicable by reason of his peculiar personality traits and prejudice against the 9 Children.

202.  Because of the Chi Fu Incident, Mr Chiu must have lost trust in Ms Wong too. Otherwise he would not have instructed the private investigator or installed the phone recording device at home.

203.  Eventually, the looming custody battle died down.  In August 2000, which was about 10 months after the Chi Fu Incident and the short-lived lawsuit of HCA1548/2000, Mr Chiu asked Ms Wong to stay in Flat 6C after her major operation a few months ago.  According to Man Ying’s evidence, which I accept, Ms Wong accompanied Mr Chiu to listen to Cantonese opera.  The photos taken on 11 August 2000 showed a happy family of four : Mr Chiu, Ms Wong and the two youngest plaintiffs.  The facial expression (smiling with content) and body language (Mr Chiu resting his arm on Ms Wong’s shoulder) did show some familial intimacy.  However, as I have said, the fact that Mr Chiu kept cordial with Ms Wong after the Chi Fu Incident does not mean that he had forgotten about it.

204.  Mr Chiu’s general relationship with the 9 Children before the Chi Fu Incident is uneventful.  I have already noted that he did not keep a close relationship with Man Fung, Man Ching and Man Tan after they left home.  His relationship with the six plaintiffs is on the whole entirely consistent with that of a father in a big household who engaged busily in his own business activities and hobbies.  It would also appear that he was fond of Man Ying, the youngest of Ms Wong’s children. 

205.  I digress to deal with a point raised by Mr Sarony.  He drew a distinction between how Mr Chiu treated the plaintiffs on the one hand and the children of the defendant, Ms Chan and Ms Lam on the other. The latter never lived with Mr Chiu during his lifetime.  I do not think the alleged differential treatment really matters much.  According to Ms Chan, the living arrangement was to avoid trouble among the large household that Mr Chiu had at Flat 6C.  This seems to me to be quite sensible.  More importantly, I think the alleged differential treatment does not have any bearing in the decision to disinherit the 9 Children.

206.  As I have said, the Chi Fu Incident had in fact adversely affected Mr Chiu’s relationship with the plaintiffs.  With considerable prejudice, he took it that they had sided with Ms Wong in stirring up the farce.  And such prejudice lingered even in 2001.

207.  Man Fu admitted that in the summer of 2001, Mr Chiu summoned Man Shan, Man Pau and him to Flat 6C and asked them what had actually happened about the Chi Fu Incident.  Thereafter, he instructed the defendant to tell them to return everything, including money and jewellery, which they received from their father back to him.  Man Fu ceased receiving cheques of HK$20,000 from Mr Chiu for giving tuition to Man Ying around the same time or shortly afterwards.  Although Man Shan and Man Pau denied having been summoned as such, the objective fact was that the defendant asked them to return HK$150,000 Mr Chiu previously gave.  Man Pau accepted that she must have done so with Mr Chiu’s authority.  Man Shan was asked to either give back what she was given or move out of the flat in Baguio Villa that her father provided.  She moved out on or around 5 October 2001, only two weeks away from her due date of delivery.  Man Pau returned the jewellery including a set of dragon and phoenix bangles given to her wife.  These harsh punishments fully reflect his autocratic character.  I reject the evidence of Man Fu, Man Shan and Man Pau that the treatments that they received were something done on the defendant’s initiative.  In my view, these treatments must have come from their father.

208.  It is true that Mr Chiu did not mete out punishment to Man Fu, Man Shan and Man Pau until 2001.  But it is consistent with one of the many aspect of his very peculiar personality, that is, to settle the score after the autumn.  On the face, such conduct might not be consistent with his being a quick-tempered man when provoked.  But with his complicated personality, I think it is something that he could and did do at the time.

209.  Back in October 2000, Mr Chiu took Man Shan and Man Fu on a holiday to Thailand.  According to the defendant, Mr Chiu did so because he was told that they had fallen out with Ms Wong.  Whether what the defendant said was true is beside the point.  For soon afterwards, Mr Chiu did summon them to Flat 6C and treated them as aforesaid.  His relationship with them must have reached a very low point in 2001 indeed.

210.  It is by no coincidence that in around the time when Mr Chiu meted out his punishments to Man Fu, Man Shan and Man Pau, Ms Wong moved out of Flat 6C and she left Flat 6C and moved to Sheung Ping to live by herself.  She was upset, inferentially by what Mr Chiu did to her children, when she left.  Man Ying said she did not know what happened but she was fully aware that she might not see her mother again.  As it turned out, Ms Wong never set foot in Flat 6C again although she made short trips back to Hong Kong from time to time.  Man Ying only saw her a few times since her departure.

211.  The installation of the phone recording device at home after the Chi Fu Incident indicates that Mr Chiu did not completely trust those of the 9 Children who were not living with him.  He wanted to tape their telephone calls.

212.  All of this shows that the prejudice sowed in Mr Chiu’s mind against the 9 Children back in October 1999 refused to wither away.

213.  I now come to the Sheung Ping Dinner.

214.  The defendant had exaggerated when she said in her witness statement that all the 9 Children showed disdain and hostility to Mr Chiu at the dinner.  In fact, only Man Shan, Man Tan, Man Pau and Man Ching were there.  Man Ching, she accepted, did not misbehave.  Her version of the event is otherwise largely consistent with what she told Man Fung and Man Fu over the phone shortly afterwards as recorded on the calls taped.  So her version cannot be a recent fabrication.  Although they denied that they had not showed any disrespect to Mr Chiu and the defendant, on their evidence, Man Shan and Man Pau’s greetings to Mr Chiu were perfunctory.  Man Shan said she just nodded to him and exchanged looks of the eyes.  Man Pau said he said “daddy” to Mr Chiu.  When Mr Chiu asked him if he had eaten anything, Man Pau nodded.  He did not say anything else to him.  I fully appreciate that they were very much saddened by their mother’s unexpected demise.  But evidently Mr Chiu felt that he was not shown the respect he expected from some of his children at the dinner.  I find that he was deeply offended by what he perceived to be disdain and disrespect. 

215.  In my view, the perceived disrespect shown to Mr Chiu at the dinner flared up the prejudice that he had held against the 9 Children since the Chi Fu Incident.  He vented his anger by instructing the defendant to tell Man Shan that he was going to sever his relationship with Man Fu.  That was recorded in the taped telephone conversation between the defendant and Man Shan on or about 26 or 27 April 2003.  Effectively, Mr Chiu blamed Man Fu, who was quite innocent, for what took place at Sheung Ping Dinner.  Mr Sarony queried if Mr Chiu did decide to disown Man Fu.  He relied on a point arising from the taped telephone conversation between Man Fu and Mr Chiu on the very night when Man Shan called to break the news of Ms Wong’s suicide to Mr Chiu.  Man Fu was also on the line.  Mr Chiu comforted Man Fu.  Mr Sarony said it shows Mr Chiu’s love and concern to Man Fu.  I think it is perfectly understandable for a father to comfort his son who was troubled by his own mental illness and condemned by the feeling that he was somehow responsible for the death of his mother.  Mr Chiu would be most inhuman if he did not say a single word of encouragement.  I find that he was genuinely concerned about Man Fu at the time.  Mr Chiu also said he had been sick for a long time.  The defendant said that he used that as an excuse to cut short the call.  She referred to the objective evidence that Mr Chiu was not seriously sick at the time.  But she contradicted herself when over one of the subsequent calls to Man Fung, she told her that “he was even more sick” after the trip to Sheung Ping.  But I do not think it matters much.  For the conversation with Man Fu took place before Mr Chiu went to Sheung Ping.  After what happened there, Mr Chiu with considerable prejudice blamed Man Fu for what happened at Sheung Ping.

216.  In my view, it is also because of the fury and prejudice flared up by the perceived disrespect shown to him at the Sheung Ping Dinner that Mr Chiu decided to disinherit all the 9 Children.  To an objective and dispassionate observer, Mr Chiu might have over reacted.  But to Mr Chiu, who was clouded by his fury and prejudice, and with his personality traits, it was justified.  Just like what he said at the heat of the Chi Fu Incident about disinheriting the 9 Children, his actual decision do so after the Sheung Ping Dinner is explicable by his personality traits and prejudice.  It does not evidence an unsound mind.

E.8.d.    Conclusion

217.  Gathering all the threads together and viewing the evidence in the round, I find that the 2003 Will is not irrational in the sense that the decision to completely disinherit the 9 Children is explicable by the matters which I have discussed above.  It shows no unsound mind on Mr Chiu’s part.

218.  Even if I were wrong and the 2003 Will is irrational, as I have said, irrationality alone is insufficient.  It is only one of the relevant factors that the court needs to take into account when considering testamentary capacity.  It must be evaluated together with all the evidence, factual and medical.  I have already discussed the factual evidence and the evidence of the treating doctors which convincingly shows no signs or symptoms of an unsound mind.  As will be seen in a moment, the same is true for the expert evidence.  In my view, the absence of such signs or symptoms or any supporting medical evidence is fatal to the notion that an unsound mind can be inferred from the irrationality of the 2003 Will alone.

E.9.   The experts’ evidence

219.  I next discuss the experts’ evidence.

220.  The court is loaded with extensive records of Mr Chiu’s hospital admissions, clinical records from the treating doctors and drug prescriptions over the years, and a variety of CT scans, MRI and MRA films of his brain at different times.  A brief survey of these records reveals a general picture of an unhealthy man, who had since 1990s persistently suffered from poorly controlled diabetes mellitus, hypertension, asymptomatic hyperlipidemia, anxiety neuroses and chronic insomnia.  He was obese and a heavy smoker consuming 1 to 2 packets of cigarettes a day and refused to quit smoking despite repeated advice from his treating doctors.  He had a first brainstem infarct in 1996 and a second one in 1998, followed by a transient ischemic attack in 2001. He had an attack of Meniere’s disease in December 2002.  He underwent no less than 11 gastroscopies and 6 colonoscopies between 2001 and 2004.   Between 2000 and 2004, he was admitted to hospital on 28 occasions, 5 of which were in 2003 and 14 in 2004.  He was prescribed a variety of drugs for his various conditions, including psychotropics and hypnotics for anxiety and insomnia.

221.  Against this medical background, the experts have produced numerous reports, focusing on three major aspects : (a) neurological; (b) pharmacological; and (c) psychiatric.  They essentially performed a retrospective evaluation of Mr Chiu’s mental profile based on the evidence available with an emphasis on the medical side.  Their evidence is understandably quite technical and extensive.  I do not think it is necessary to address all the points taken by them.  Disposal of the decisive ones will do.  It does not, however, mean that I am going to take a blinkered approach when considering the evidence.  Instead, I always bear in mind the holistic picture of Mr Chiu’s medical condition over the years, in particular in the crucial months of April to June 2003.

222.  I must also consider the experts’ evidence together with the other evidence which I have discussed above.  As I have observed in Re LLC, supra, :

“85. … Non-medical factual evidence may also shed considerable light on his capacity. For example, the non-medical factual evidence on how the testator conducted himself and interacted with others may provide important clues as to his cognitive and emotional ability, something which are cogently relevant to his mental capacity.

86.     Occasionally, the factual evidence may conflict with the medical view.  The court will evaluate and weigh the factual evidence against the medical evidence and vice versa in determining what exactly the mental state of the testator was. …”

E.9.a.    Neurological aspect

223.  In the course of the proceedings, a suggestion has been made that Mr Chiu might have suffered from dementia.  Dr Huang, the plaintiffs’ neurologist, confirmed that there is insufficient evidence to conclude that Mr Chiu suffered from dementia.  Mr Sarony also confirmed that it is not the plaintiffs’ case that Mr Chiu suffered from vascular dementia.

224.  The conclusion that Dr Huang drew in his reports is that Mr Chiu had a high likelihood of cognitive impairment at the material times because of various factors.  For reasons which will become obvious in a moment, I do not think I need to dwell on the factors in detail.  I will dispose of Dr Huang’s evidence by looking at the following major points, which constitute formidable objections to his view on Mr Chiu’s mental capacity.

225.  First, under cross-examination, Dr Huang readily conceded that he could not determine the extent of Mr Chiu’s impairment from the records.  He further qualified his evidence by saying that he was not suggesting that he was able, from the medical records, to determine on the balance or probabilities or express an opinion that Mr Chiu was in fact suffering from significant cognitive impairment.  All that he was saying was that in the absence of a proper mental examination, there were red flags raised and question which had to be asked.  Effectively, he was simply raising questions and he was not seeking to draw conclusions from the medical and hospital records.  Dr Huang’s qualification reduces quite considerably the weight of his written opinion that Mr Chiu had a high probability of cognitive impairment at the material times.

226.  Second, Dr Huang’s repeated theme, echoed by Mr Sarony in his closing submissions, is that since there was an absence of recorded signs or symptoms of cognitive impairment, one cannot definitely say that he was not so impaired.  With respect, this theme is without basis.  It is not the plaintiffs’ case that Mr Chiu was suffering from some kind of peculiar mental deficiency so much so that even doctors including a trained neurologist like Dr Tse would have failed to pick up the relevant symptoms.  So the fact that there was no documented record of Mr Chiu exhibiting symptoms of cognitive impairment not only shows that the treating doctors did not detect any such symptoms but also strongly and inferentially suggests that in fact Mr Chiu had none.

227.  Third, Dr Huang had not in his reports taken into account a number of crucial factual witnesses like Mr Hui, the accountant, Mr Lam, the estate agent who described how Mr Chiu had conducted his affairs before and during the crucial period of time.  In cross-examination, Dr Huang was referred to their evidence.

228.  Dr Huang agreed that as gleaned from Mr Hui’s evidence, as of March 2002, it was most unlikely that Mr Chiu was suffering from any cognitive impairment.  Assuming that the court accepts Mr Hui’s evidence, Dr Huang said he would agree that the cognitive impairment of Mr Chiu would be slight as of June 2003 even if there was any and that Mr Hui’s evidence would be a very strong indication that Mr Chiu had no significant cognitive impairment.  He even went on to say that Mr Chiu had reasonable cognitive ability.  He later qualified his evidence in re-examination that Mr Hui’s evidence was not sufficient to satisfy him that Mr Chiu had normal cognitive ability.

229.  Dr Huang said if Mr Lam’s evidence is accepted by the court, and on the assumptions that Mr Chiu was not overstretching himself financially or buying at the wrong moment of the property cycle (of which there is simply no evidence in support), he agreed that Mr Lam’s evidence would totally exclude the possibility of any significant cognitive impairment in terms of executive function on the part of Mr Chiu.  Again, Dr Huang retracted in re-examination by saying that Mr Lam’s evidence was not sufficient to satisfy him that Mr Chiu had normal cognitive capacity.

230.  I have already accepted the evidence of Mr Hui and Mr Lam in full.  As Dr Huang initially accepted under cross-examination, their evidence strongly militates against any assertion that Mr Chiu had any significant cognitive impairment.  In my view, the retraction Dr Huang made in re-examination is but a futile attempt to salvage his already sinking proposition that Mr Chiu had a high probability of suffering from significant cognitive impairment.

231.  Dr Huang was also referred to the evidence of the defendant on her observations of Mr Chiu’s daily activities and mental state.  He fairly agreed that the defendant would be in the best position to observe daily activities.  Subject to the court accepting her evidence and her sensitivity to the presence of cognitive impairment, Dr Huang was prepared to accept that she did not notice anything wrong in terms of the cognitive ability or mental status of Mr Chiu is some evidence towards the conclusion that there was no significant deterioration in his cognitive ability.  The same applies to the evidence of Ms Chan and Man Fu and Man Shan.

232.  In light of the conclusion that I reached on the family members’ evidence, Dr Huang’s concession under cross-examination must now prevail over his written opinion.

233.  What I have said is sufficient to dispose of Dr Huang’s evidence.  For completeness, I would deal with the factors that he relied on very briefly.  The factors are risk factor, behaviour factors, cerebro-vascular status and analysis of Dr Ng’s mental state examination.  I have considered his evidence in full with care.  His evidence on the first two factors, which arose from, among other things, Mr Chiu’s medical treatments and alleged drug non-compliance, is bothering on speculation, which must be rejected.  His evidence on cerebro-vascular status is highly technical.  I will not repeat it in order not to overburden this judgment.  Suffice it to say I prefer the evidence of Dr Woo and Dr Tse who could not detect any significant neurological change or deficit that would affect Mr Chiu’s cognitive ability or function.  Dr Huang’s criticisms on Dr Ng’s mental state examination are justified. But as I do not attach weight to that examination or the Certificate, it does not take Dr Huang’s overall evidence on Mr Chiu’s testamentary capacity any further.

234.  Turning to the evidence of Dr Woo, the defendant’s neurologist, what I need to say is that having duly considered his reports and oral testimony with care, I accept his opinion that Mr Chiu did not suffer from any cognitive impairment as contended by the plaintiffs.  His evidence is entirely consistent and supported by the evidence of the family members, the factual witnesses and the treating doctors as set out in Part E above.

E.9.b.    Pharmacological aspect

235.  In his reports, Professor Tomlinson, the plaintiffs’ pharmacologist, concluded that there is a high probability that significant cognitive and emotional impairment was present at the preparation and signing of the 2003 Will.  In his oral testimony, Professor Tomlinson said by high probability, he meant 70 to 80%.  He based on two grounds :

(1)     the mixture of drugs that Mr Chiu took; and

(2)     cerebral vascular disease.

236.  Professor Tomlinson also queried the mental state examination performed by Dr Ng on Mr Chiu on 5 June 2003.

237.  Professor Tomlinson is called as an expert on pharmacology and pharmacology alone.  In that capacity, he is not qualified to proffer, as he purported to do in his reports and oral testimony, any expert view on how Mr Chiu’s cerebral vascular disease or radiological findings from the CT scans, MRI and MRA films might have affected his cognitive or emotional capability.  His evidence on those matters must be rejected.  Likewise, it does not lie in Professor Tomlinson’s expertise to comment if Dr Ng’s mental state examination is valid or not.  In any event, as I do not attach weight to that examination, Professor Tomlinson’s criticisms have become irrelevant.  Professor Tomlinson also commented on how Mr Chiu invested in the stock market in 2003 and opined that Mr Chiu might have cognitive impairment.  His comments are mere speculations, which must be rejected.  In any event, they do not fall within his expertise.

238.  What remains is Professor Tomlinson’s evidence on the effect of the mixture of the drugs that Mr Chiu took over the years.  In gist, he opined that Mr Chiu was taking a mixture of psychotropic drugs which are clearly known to have effects on cognitive functions.  It is highly likely that Mr Chiu had significant cognitive impairment merely because Mr Chiu was taking these drugs.  What Professor Tomlinson could not satisfactorily explain is this.  If the psychotropic medications that Mr Chiu took did produce significant cognitive and emotional impairment, the associated symptoms must have become apparent to any observer, lay or medical, in the course of the treatment over the years.  But as I have found, none of the lay witnesses such as his family members and the independent factual witnesses or the treating doctors, especially Dr Tse, detected any such symptoms at all.  Professor Tomlinson also failed to take into account the factual evidence on Mr Chiu’s mental state, although he accepted that such evidence is cogently relevant.

239.  I find Professor Tomlinson’s evidence unsatisfactory and reject it.

240.  Professor Tang, the defendant’s pharmacologist said that the psychiatric medications prescribed to Mr Chiu are commonly prescribed by non-psychiatrists, in particular by general practitioners for the discomfort, stress, anxiety and pain, which commonly existed.  The small doses used do not generally causes serious side effects and would not result in psychiatric disorders by themselves.  Used in the manner as Mr Chiu did, these medications are not expected to impair a person’s reasoning power, decision making ability, long term memory, or one’s cognitive function with respect to testamentary capacity.  The side effects listed for these medications generally occur early in the treatment process and the patient or the treating doctors would have discontinued the medications in the presence of serious side effects, particularly if the side effects are prolonged.  Further, because of the small doses prescribed, it would be unlikely that significant drug-drug interaction occurred between the psychiatric drugs resulting in an impairment of the testamentary capacity of Mr Chiu, even considering his medical condition and age.

241.  Professor Tang’s evidence is well supported by the factual evidence on Mr Chiu’s mental state.  I accept it entirely.

E.9.c.    Psychiatric aspect

242.  Two psychiatric issues are raised :

(1)     if Mr Chiu suffered from delirium; and

(2)     if Mr Chiu bereaved by Ms Wong’s death and if so, did it affect his testamentary capacity?

243.  Delirium, the experts agreed, is a serious medical condition with an impaired level of consciousness.  It is a disturbance of consciousness and changing cognition that develops over a short period of time.

244.  Of all the doctors and experts involved in these proceedings, Dr Wong is the only one who insisted that Mr Chiu was suffering from delirium.  But he readily admitted that there is no evidence of Mr Chiu had any symptom of delirium. Significantly, he agreed that there is absolutely no evidence that on 5 June 2003, Mr Chiu displayed symptoms of delirium, such as disturbance of consciousness and cognition, disorientation, impaired concentration, thinking, memory and judgment or any visual auditory or other forms of hallucinations or delusions.  This, in my view, should have put an end to his case on delirium.

245.  However, Dr Wong persisted and said that according to medical literature, delirium is often missed or unrecognized.  He said that although there is no record of positive findings, there is room for doubt whether the diagnosis might actually have been missed.  He said based on his findings, Mr Chiu was probably suffering from delirium.  I do not think I need to detail his argument.  If Mr Chiu did have delirium, it is simply impossible that his symptoms could have missed by every single treating doctor, the attending nurse or the expert, including Dr Huang who did not find any evidence of delirium.  To hold otherwise is to admit the most extraordinary proposition that all doctors, nurses and experts could have missed something so important that he alone could discern.  Dr Wong later admitted, quite fatally, that he did not have ground to doubt the accuracy of the admission records prepared by the nurses who assessed Mr Chiu to be fully conscious and not delirious when he was admitted to the hospital between March 2003 and December 2004.

246.  In his closing submissions, Mr Sarony did not maintain that Mr Chiu was suffering from delirium.  His concession is inevitable because of the bankrupt quality of Dr Wong’s evidence.  I have no hesitation whatsoever in rejecting Dr Wong’s unfounded opinion that Mr Chiu was at the material times suffering from delirium.  I find that he was not.

247.  Bereavement is first judicially recognized in England[10] as a factor capable of giving rise to a risk of mental disorder sufficient to deprive a person of the power of rational decision-making in In re Key, decd [2010] 1 WLR 2020.  There, the testator and his wife were married for 65 years and had two sons and two daughters.  In November 2006, his wife died.  The testator, who was aged 89 and infirm, had little or no warning of his wife’s impending death and had been totally dependent on her for his domestic care.  A week after her death, at the request of one of his daughters, a solicitor attended the testator’s home to take instructions for a new will. Two days later, the same daughter took the testator to the solicitor’s office where he duly executed the new will.  It provided for the bulk of his estate to be divided equally between the two daughters, in contrast with his previous will of December 2001 by which the bulk of the estate was, subject to life interests in favour of his wife, to be divided equally between the two sons.  After the testator died in July 2008, the sons brought proceedings challenging the 2006 will on grounds, inter alia, of want of testamentary capacity.  Briggs J allowed the claim, holding that the bereavement was a factor capable of impairing testamentary capacity and the testator was on the evidence as a whole devastated by his bereavement and had been unable during the week following his wife’s death to exercise the decision-making powers required of a testator.  He observed :

“95 … it must be recognized that psychiatric medicine has come a long way since 1870 in recognizing an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognized by the law, and the affective disorder which may be caused by bereavement is an example recognized by psychiatrists….[One of the experts] described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Accordingly…the Banks v Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognize in the 19^th century.

96      … [Bereavement] is more likely to affect powers of decision-making than comprehension.  A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit.”

248.  Here, Man Ying, who had been living with Mr Chiu throughout the last four years of his life (between mid-August 2000 and December 2004) observed that after Ms Wong’s death, Mr Chiu was not as happy as before.  He had become much quieter.  Contrast that with the defendant’s undisputed evidence that Mr Chiu and the defendant went on an extended trip to Thailand right after Ms Wong’s death and then to Macau to gamble on 1 June 2003.  In my view, even if Mr Chiu might have been saddened by Ms Wong’s death, he was not bereaved to such an extent that his mental capacity was affected.

249.  Dr Wong also relied on Mr Chiu’s response to Ms Chiang’s advice and explanation of the 2003 Will.  Basically, he responded by nodding and or a simple “yes” or “no”.  Dr Wong said Mr Chiu was hypoactive, which shows bereavement.  But Mr Chiu’s response is equally consistent with him listening to Ms Chiang carefully and indicating his understanding to her succinctly. I am unable to subscribe to Dr Wong’s view.

250.  In the end, Dr Wong did not seek to express a view that Mr Chiu was bereaved.  I find that he was not.

E.9.d.    Conclusion

251.  Based on the expert evidence that I accept, viewed together with the factual evidence, I find that Mr Chiu did not suffer from any cognitive or emotional impairment at the material times.

E.10. Answers

252.  Following the general approach on burden of proof strictly, I am not satisfied that the plaintiffs have discharged the evidential burden of raising lack of testamentary capacity as an issue.  Even if they have, the evidence, both factual and medical, shows overwhelmingly that Mr Chiu did have the requisite testamentary capacity when instructions were give for the preparation of the 2003 Will in April 2003 and when he executed the same in June 2003. And I so find.

253.  I answer both Issues 1 and 2 in the affirmative.

F.       ISSUES 3(a) & (b)—KNOWLEDGE AND APPROVAL

F.1.    The single question

254.  In approaching the question whether a testator had known and approved the contents of his will, the only question is to determine is whether the testator had understood what was in the will when he signed it and what its effect would be.  It is a single issue to be determined by reference to all the relevant evidence and to the appropriate inferences to be drawn from the totality of the evidence available : Gill v Woodall and others, supra, per Lord Neuberger of Abbotsbury MR, at para. 22.  As Lloyd LJ put it :

“71 … it covers the propositions both that the testator knows what is in the [will] and that he approves of it in the sense of accepting it as setting out the testamentary intentions to which he wishes to give effect by execution. In Hoff v Atherton [2005] WTLR 99, para 64, Chadwick LJ said: ‘If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect.”

255.  This is the test that I am going to apply here.

256.  Mr Yu, SC, for the defendant, submitted that in ordinary circumstances, upon proof of due execution and testamentary capacity, knowledge and approval is rebuttably presumed : Nina Kung, supra, per Ribeiro PJ at paras. 206-207.  Here, due execution is not an issue.  And in light of my earlier finding on testamentary capacity, the presumption does apply.  But the defendant is not relying on the presumption alone.  As I will demonstrate, the evidence shows clearly and in fact beyond doubt that Mr Chiu did have knowledge of the 2003 Will and approved of it at the time of execution.

F.2.    Discussion

257.  The thrust of the evidence of the defendant, corroborated by Ms Chan and Ms Lam is this.  After returning from Sheung Ping, during the earlier hours of 26 April 2003, Mr Chiu told the defendant, in the presence of Ms Chan and Ms Lam, that he was going to make a new will, that the defendant was to be the sole beneficiary and executrix of the new will, that not a penny would be left to the 9 Children; that the defendant was to provide for his various children; and that if the three youngest of the 9 Children behaved, she might provide for them as she wished.

258.  In his closing submissions, Mr Sarony traced the “mutation” of the defendant’s case on how Mr Chiu gave the instructions for the new will.  He submitted that the evidence of the defendant, Ms Chan and Ms Lam is full of inherent contradiction, incompatibility and irreconcilability.  He said the three women plotted together to lie about the purported instructions Mr Chiu gave for the new will.

259.  This line of attack is bothering on alleging fraud.  It is simply impermissible as it does not form part of the plaintiffs’ pleaded case.  In any event, although there are bound to be minor inconsistencies in the evidence of the defendant, Ms Chan and Ms Lam, given the lapse of time, I do not find their evidence on Mr Chiu’s instructions incredible.  Further, in light of my conclusion based on Ms Chiang’s evidence below, which effectively shows that Mr Chiu did confirm his instructions, Mr Sarony’s criticism cannot possibly be sustained.

260.  Ms Chan said at about 9 a.m. on 26 April 2003, she called Ms Chiang, relaying to her Mr Chiu’s instructions of making a new will naming the defendant as sole beneficiary and executrix and disinheriting the 9 Children.  Ms Chiang seldom dealt with wills.  Ms Chan told her that it was Mr Chiu who would like her to be personally involved in the preparation of his will.  Ms Chiang asked if it was a complex will.  She was reassured that it would be a simple will, “leaving all assets to the wife.  And if she passed away, then to [Man Ho]”.  Ms Chiang said she was not then aware of the complexity of the problem.

261.  Mr Sarony submitted that Ms Chan had misled Ms Chiang on the fact that Mr Chiu had children other than the 9 Children.  Again, this submission is not permissible in the absence of a proper plea.  In any event, Ms Chan remained adamant under cross-examination that Mr Chiu’s specific instruction did not concern his other children and she had faithfully relayed his instructions to Ms Chiang.  I accept Ms Chan’s evidence.

262.  Ms Sarony next queried the choice of Ms Chiang as the handling solicitor for the 2003 Will. But I accept it was Mr Chiu’s own choice.  Mr Sarony then criticized Ms Chiang for failing to appreciate the complexity of the problem and referring the matter to the probate department of Messrs Deacons. He repeated his submission that Ms Chiang had failed to follow the Guide in handling the 2003 Will.  However, as rightly submitted by Mr Yu, the court is not concerned with any failure of professional duty on her part. The court is concerned with the question whether Mr Chiu had knowledge and approved of the 2003 Will.  As will be seen, I have no difficulty whatsoever to conclude that he did.

263.  As noted, Ms Chiang fairly said that she herself seldom dealt with wills.  So when she received instructions from Ms Chan concerning the 2003 Will, she discussed the matter with Mr Wong Wai Pat, a consultant in her department who had vast experience in preparation of wills.  Ms Chiang then prepared the draft will and the draft medical certificate and faxed them to Mr Chiu together with the advice.  In the Advice, Ms Chiang advised Mr Chiu that there is no legal procedure to renounce his relationship with the 9 Children, of the persons who are entitled to claim under the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 and that an infant cannot be appointed as an executor.  After receiving the Advice, Ms Chan called Ms Chiang and re-confirmed that it was Mr Chiu’s instruction that he would not make any provision for the 9 Children and he would not state his reasons for so doing in the will.

264.  As already noted, Ms Chiang said she found Mr Chiu’s decision to disinherit all his children disturbing and felt uncomfortable about the idea.  She therefore requested that a doctor be present to certify that Mr Chiu had the requisite testamentary capacity before executing the 2003 Will.  Dr Ng was therefore engaged.

265.  The meeting on 5 June 2003 lasted for about 15 minutes, according to Ms Chiang’s attendance note.  She first attended Mr Chiu alone and explained the Advice and the contents of the 2003 Will to him.  Ms Chiang said :

“I went through the [Advice] with Mr Chiu paragraph by paragraph. Mr Chiu confirmed to me that he fully understood the [Advice] and the effect of [the 2003Will]. I also explained to Mr Chiu that it was common to state the reason in a will for not making provision for one’s infant children and it was a factor which the court would take into account as to whether or not the will is fair, reasonable and rational. Mr Chiu told me that he fully understood my advice but still did not wish to state his reason in [the 2003 Will] for not making any provision for [the 9 Children].”

Ms Chiang said in her oral testimony Mr Chiu confirmed his understanding of her advice and instructions by nodding and “yes”.

266.  Mr WT Yu then joined Mr Chiu and Ms Chiang.  In Mr WT Yu’s presence, Ms Chiang interpreted the contents of the 2003 Will to Mr Chiu in Cantonese.  Mr WT Yu and Ms Chiang then attested the execution of the 2003 Will by Mr Chiu.  Mr Chiu also executed a power of attorney in her presence on 5 June 2003.  Mr WT Yu’s evidence does not add much to Ms Chiang’s.

267.  I accept Ms Chiang’s evidence in full, which puts the matter beyond any doubt.  I find that Mr Chiu knew full well of the contents of the 2003 Will and approved of it.

268.  The plaintiffs contend that the 2^nd rule in Barry v Butlin applies by relying on three points.

269.  Mr Sarony first argued that Ms Chan, who gave instructions to Ms Chiang, was closely associated with the defendant, the sole beneficiary of the 2003 Will.  So the court’s suspicion is aroused.  I disagree.  Ms Chan would be better off if the 1997 Will were held to be valid, because her son was also a beneficiary.  If the 2003 Will is valid, she would have to rely on the defendant’s goodwill to maintain her and her children.

270.  Mr Sarony next contended that the defendant had controlled the access to Mr Chiu. This is irrelevant.  The real question is whether Mr Chiu had knowledge of the terms of the 2003 Will and approved of it.  On the evidence before me, he did.

271.  Finally, Mr Sarony relied on Battan Singh and others v Amirchand and others [1948] 1 AC 161 and argued that doubts existed if the instructions related to Ms Chiang really came from Mr Chiu and represented his true testamentary wishes.  I have already accepted Ms Chan’s evidence on this point.  Further, in light of Ms Chiang’s evidence, which shows clearly that Mr Chiu understood the contents of the 2003 Will, had Ms Chan made any mistake in relaying his instructions to Ms Chiang, he surely would have corrected the same on the spot.

272.  For those reasons, I hold that the 2^nd rule in Barry v Butlin does not arise.  Even if I were wrong, Ms Chiang’s evidence must have dispelled all suspicion completely.

F.3.    Answers

273.  In my view, the plaintiffs have not discharged the evidential burden of putting lack of knowledge and approval in issue.  Even if they have, the evidence shows unequivocally that Mr Chiu did know the contents of the 2003 Will and approve of it.

274.  I answer Issue 3(a) in the negative.  But it matters not because even if it should be in the affirmative, the answer to Issue 3(b) is a resounding “yes”.

G.      OTHER ISSUES

275.  The remaining main issues are now academic. For completeness, I will dispose of them fairly shortly.

G.1.   Issues 4 and 5

276.  In his witness statement, Mr Pak detailed how he received instructions from Mr Chiu for the 1997 Will and how he duly executed it at the office of Messrs Day & Chan on 24 December 1997.  Mr Chiu then said he only needed a copy and he entrusted Mr Pak to keep the original.  Mr Pak did so even after he went to another law firm in August 1998.  In late April 2003, Messrs Deacons requested the return of the original 1997 Will.  Mr Pak then arranged it to be sent to Messrs Deacons.  Mr Pak then exhibited a copy of the 1997 Will to his witness statement.  There is nothing to contradict Mr Pak’s evidence, which I accept.

277.  I accordingly answer Issues 4 and 5 in the affirmative.

G.2.   Issues 6 and 7

278.  By making the 2003 Will, Mr Chiu must have revoked the 1997 Will.  Issue 6 is answered in the affirmative.

279.  On destruction, the defendant said that after signing the 2003 Will, Mr Chiu tore up the original and copy of the 1997 Will in her presence at Flat 6C. I accept the defendant’s evidence because having made the 2003 Will and the decision to specifically disinherit the 9 Children, it is quite logical for Mr Chiu to take the additional step of destroying the 1997 Will absolutely in the manner as he did.  I answer Issue 7 in the affirmative.

G.3.   Issue 8

280.  It does not arise.

H.      DISPOSITIONS AND COSTS

281.  For the above reasons, I dismiss the plaintiffs’ claim.  I enter judgment on the defendant’s counterclaim for an order that the 2003 Will be propounded in its solemn form.  I further order that the caveat the 4^th plaintiff entered on 14 February 2005[11] be vacated.

282.  Costs should follow the event.  I make an order nisi that the plaintiffs shall pay the defendant costs of the action, including all costs reserved, to be taxed if not agreed.  The plaintiffs’ own costs are to be taxed in accordance with the legal aid regulations.  I further grant a certificate for one senior counsel and one junior counsel.

I.       EPILOGUE

283.  To conclude, I would like to say a few words to the plaintiffs.

284.  As I have explained earlier, the law in Hong Kong gives a testator the complete freedom to dispose of his property in any way as he sees fit.  It is so even in some instances, as is the case here, he is prejudiced.  Or he is moved by bad motives.  Or he has neglected claims that ought to be attended to because of “caprice, passion, the power of new ties, or artful contrivance or sinister influence”.  Or even in a worst case scenario where the will amounts to an affront to an objective bystander’s sense of fairness or morality, thereby rendering the course that the testator has pursed reprehensible.  For it is not the court’s task to correct any perceived injustice that may arise from the will. Absent any vitiating factor such as lack of testamentary capacity, want or knowledge or approval, fraud or undue influence, the court will not interfere with his testamentary wishes, however unreasonable or inequitable they may seem.  As long as it is a true expression of his real mind, the court shall and must give effect to it as his will.

285.  In the present case, an objective bystander may well be forgiven if he shares wholeheartedly Ms Chiang’s feeling when she received instructions to prepare the 2003 Will. She found it quite disturbing and felt uncomfortable when she learned that Mr Chiu, by making the 2003 Will, was going to disinherit all the 9 Children. The bystander may also sympathize with the plaintiffs because disrespectful as some of them might be to their father, they did not deserve the very harsh treatment from him.  His sense of justice or morality may be offended by what Mr Chiu had done and in particular by his prejudice to Man Ying, the youngest of all who had done nothing disrespectful to him at all.  But however strong these sentiments are, they are not, on settled law, valid grounds for the court to interfere with the 2003 Will, which, as I have found, truly represented his last testamentary wishes.

286.  The plaintiffs now have to live with the cruel, disheartening reality that despite his immense wealth, their late father had left them with no provision in his will.  For the three younger plaintiffs, he had left them to the mercy of the defendant who will in her sole discretion decide whether or how to provide for them if they “behave themselves and do not cause trouble”.  The prospect of them getting any financial provision from her, with whom they have already fallen out, seems to be rather bleak until, perhaps, they reconcile with her, which I am afraid is rather unlikely.

287.  The result of these proceedings is surely something which the plaintiffs find hard to swallow.  It is however time to move on.  I do hope they will leave this sad episode behind and soldier on with their life.