MA PO CHIM AND OTHERS v. MAR LOK SHAN AND OTHERS

Action No. P6 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiffs seek to prove a will of Ma Shiu-lim, deceased, in the Chinese language dated 6th December 1985 in solemn form. The 1st and 2nd defendants and the former 7th plaintiff are propounding an English Will of the deceased executed less than three months later on 3rd March 1986. At the trial, that was in totality the opposing stance taken by these parties as adversaries, although the former 7th plaintiff had been struck out as such but remained a defendant in the Counterclaim. The other parties expressed no view openly in these proceedings and they played no active role in the hearing. I shall call these alleged wills sought to be propounded "the 1985 Chinese Will" and the "1986 English Will" respectively.

2. The deceased was a widower and left surviving him four sons and two daughters. The eldest son has only one daughter and the other sons have children of their own. The deceased's brother also survived him and he has an adopted son. The deceased left also two surviving sisters. These members of the Ma family are parties to this action as well as in the Counterclaim with the exception of the deceased himself and his eldest daughter who is now only a defendant in the Counterclaim. The 1985 Chinese Will and the 1986 English Will created what is arguably a valid charitable trust, but neither the beneficiaries of these trusts as a class nor the Attorney General have been joined in these proceedings. However, no point was taken on this procedural shortfall. Counsel also did not question the lost 1985 Chinese Will and the lost 1986 English Will. It was the consensus that to all intents and purposes, pages 86-90 of the smaller bundle are to make up the copy of the lost 1986 English Will sought to be propounded and Exh.D15 (S6) is similarly to be accepted as copy of the lost 1985 Chinese Will sought to be proved in solemn form. The 1985 Chinese Will left the names of two granddaughters uncompleted as can be seen at page 75 of the smaller bundle. But the intention of the deceased was unobscure and the parties to these proceedings regarded Exh.D15 (S6) with three missing Chinese characters subsequently filled in as a copy of a validly executed will, the lost 1985 Chinese Will. The validity of the formalities in execution was also admitted for both the 1985 Chinese Will and 1986 English Will. The 1986 English Will purports to revoke, inter alia, the 1985 Chinese Will. The common concensus is that if the 1986 English Will cannot, for any reason, stand, probate is to issue on the 1985 Chinese Will. The deceased's brother, his nephew and his eldest daughter (the 1st, 2nd defendants in the action and the 7th defendant in the Courterclaim) led the charge at the continued operation of the 1985 Chinese Will. I shall call them collectively "the contesting defendants".

3. The plaintiffs attacked the 1986 English Will on three fronts, namely the deceased's testamentary capacity, his knowledge and approval of the nature and contents of the 1986 English Will and alleged undue influence of the deceased's brother over him in its preparation and execution. The contesting defendants supported the 1986 English Will. It was for them to satisfy this court that the deceased had testamentary capacity and he knew and approved of the nature and contents of the 1986 English Will. The onus for establishing the alleged undue influence of the deceased's brother over him in the preparation and execution of the 1986 English Will lay on the shoulders of the plaintiffs. Evidently, "after hearing and weighing the evidence," if this court "comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered." That is, in general, the proper approach, and "onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that they can come to no such conclusion." Robins v. National Trust Co. Ltd. [1927] AC 515 at p.520 per Viscount Dunedin.

4. The family tree is exhibited as "P1". The deceased came from a modest background. He was reasonably successful in business leaving at his death, according to his elder son, the 1st plaintiff, an estate of some $4M. The eldest son works in the Inland Revenue Department and is a person expected to be able to produce an accurate valuation. The deceased had every reason to be proud of his own achievements and his family. His granddaughter, a child of his eldest son, is a graduate of the Oxford Law School. His other offsprings are gainfully employed. He was socially active and was enthusiastic in the promotion of his native place, Chung Shan in China. He was on the boards of a number of commercial institutions in Hong Kong, and was a director of one of our better known department stores. He was well versed in the Chinese language and had, time and again, assisted villagers in the drafting of their wills. In August 1985, he prepared a joint will for his brother, Mr Mar Lok-shan, the 1st defendant and his wife, Madam Chan Cheuk-fong.

5. Apart from the 1985 Chinese Will and the 1986 English Will, there were a number of drafts and other testamentary papers found at various times and produced at this trial, including a Chinese Will dated 21st March 1981. The deceased attempted two drafts for the 1985 Chinese Will, one with his signature deleted. The other one he signed but both were not witnessed. There are two drafts in the Chinese language for the 1986 English Will. These drafts can be found at pages 68, 67, 80 and 83 respectively in the smaller bundle. I shall call them "the 1981 Chinese Will", "the (p.68) 1985 draft", "the (p.67) 1985 draft", "the (p.80) 1986 draft" and "the (p.83) 1986 draft" respectively.

6. The deceased retired in 1980. In 1986, he was 75. At a dinner in October 1985, the deceased was noticed by his eldest son to be incapable of consuming more than a small quantity of liquid. The next day, a doctor was consulted and the deceased was immediately admitted into the Queen Elizabeth Hospital for observation and examination on about 20th December 1985. On 30th December that year, the deceased took some casual leave from the Queen Elizabeth Hospital, leaving it with a view to obtaining a second medical opinion from a Dr Ma. In Queen Elizabeth Hospital, the deceased was suspected of suffering from cancer. Dr Ma referred the deceased to Dr Lam. Dr Lam's preliminary diagnosis was that either gallstone or a tumour was causing an obstruction in his bile duct. The sad news was broken to the family in the absence of the deceased. According to Dr Lam, from the age and the medical history of the patient, it was more likely a tumour than a gall-bladder duct blockade. But he treated the case as one of gallstone and advised its removal, hopefully without the need of a major surgery.

7. The eldest son of the deceased, Mr Ma Po-chim, the 1st plaintiff, would have this Court believe that in a casual telephone conversation around April/May or June/July, 1985, the deceased revealed that he was under treatment without surgery by a Dr Leung for "uprooting" his cancer. Mr Ma Po-chim was at least uncertain as to the date and there was no corroboration from any other source or medical record. As a matter of fact, cancer of the deceased was not medically confirmed until his first operation on 3rd January 1986, in which a malignant growth was found by Dr Lam to be obstructing the deceased's bile duct. The cancer verdict had throughout been discreetly kept from the deceased. Even after his second operation undertaken on 30th January 1986 principally for easing discomfort, for a time thereafter the deceased seemed to be genuinely looking forward to a full recovery. It is difficult to attach credence to the Mr Ma Po-chim's assertion that since mid-1985 the deceased had had knowledge this cancer.

8. The deceased underwent his first operation on 3rd January, in which a fairly advanced canerous tumour was detected in the area of his gall-bladder. Only marginal surgery was performed with a tube inserted into his bile duct to relieve bile obstruction. Some three weeks after the first operation, the deceased's abdomen appeared extended, showing sign of internal obstruction. A second operation was undergone on 30th January for the relief of such an obstruction. The cancerous growth was found by Dr Lam to be more widespread.

9. For some 8/10 days in February after the second operation, the deceased was comfortable, but his condition gradually deteriorated and he died on 3rd April 1986. The English Will in question was executed a month before his death. The idea of a new will was said to have been conceived more than 2/3 weeks earlier.

10. The law is well settled. The precise statements of legal principles are given in the cases I am about to refer to. I do not pretend to be able to improve on these succinct pronouncements of the law. I shall try to generalize the guiding principles in a sequence of my own choosing in the hope that this judgment may be more easily read. After a proper interpretation to and due execution by a testator of a  will in a foreign language, in general, he is presumed to have testamentary capacity, "but the moment (his) capacity is called in question, then at once the onus lies on those propounding the will to affirm positively (his) testamentary capacity" Robins v. National Trust Co. Ltd., supra. p. 519.

11. Very often, how a will came to be made is not or is not fully known to the persons affected by it. Those affected are entitled to invite the court, on the suspicious circumstances they have since discovered, to exercise care and vigilance. In effect, issue is thereupon joined in respect to a testator's will-making capacity "and place(s) upon the person propounding the will the onus of proving that the testator knew and approved of its contents". In re Stott, deceased [1980] 1 WLR 246 at p.253 Letter H. The weak state of health or weakened physical or mental condition of the testator will add to the suspicion. See Barry v. Butlin [1838] II Moore 480 at p.487. "... (T)he nature of the instrument executed, its simplicity or complexity" must also have some bearing in measuring "the power of a weakened intellect". See Durnell v. Corfield (1844) 1 Rob Eccl 51 at p.p. 63-4 per Dr Lushington.

12. All allegations of fraud were abandoned at the trial. If a person who has no rightful claim to a material share of the testator's estate prepared his will leaving a substantial benefit for himself, the person propounding the will must produce "additional evidence to prove the knowledge of its contents by the deceased". Barry v. Butlin, supra. p.484. Such additional proof is often said to be a duty "to bring home to the mind of the testator the effect of his testamentary act". See Fulton v. Andrew (1875) LR7 HL448 at p. 463. Any shortfall in the discharge of this duty would amount to "a greater or less degree of fraud". Fraud in this sense was actively pursued. In such an event, "more than ordinary proof of the authenticity of the will is called for". Williams' Law relating to wills, 6th Edn. p.46. Lord Hatherley put such further onus as one "of showing the righteousness of the transaction". Fulton v. Andrew ibid. at p.472. Or such a legatee may be said to have to "substantiate the truth and honesty of the transaction as regards" his legacy, ibid p.471. In Atter v. Atkinson LR 1 P & M 665 at p.668, Lord Penzance, as he then was Sir J.P. Wilde, observed  : "The proposition, however, is undoubted that if you have to deal with a will in which the person who made it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed but that he knew and approved of its contents." Thus, the person who propounds the will must produce evidence of the "honourable and clearly comprehended character" of the transaction. Craig v. Mamoureux [1920] AC 349 at p.356. Fundamentally, the test can be expressed in terms of an evidential rule that in these circumstances, the court is required to exercise "vigilant care and circumspection in investigating the facts" so that the court is fully and entirely satisfied "that the instrument did express the real intentions of the deceased". Re. Hartley, Hartley v. Fuld (No. 3) [1965] 3 AER 776 at p.781 Letters E & F per Scarman, J. as he then was. I prefer the practical analysis of Lord Cains, LC in Fulton v. Andrew, supra. at p.463 that in such a situation the person propounding an impugned will must demonstrate that the nature and contents of the questioned disposition had been brought home to the mind of the testator.

13. Circumstances exciting the suspicion and vigilance of a court are restricted to those attending or at least relevant to the preparation and execution of the will. See Barry v. Butlin, supra.; Fulton v. Andrew, supra. Such a situation is not "confined to the single case in which a will is prepared by or on the instructions of a person taking large benefits under it", but it would extend to cases in which the preparation and execution was in the charge of a person other than the one who takes such a benefit under the will. See Tyrrell v. Painton [1894] P 151 at p.157 per Lindly, L.J. and p.159 per Davey L.J.

14. Other matters, such as feebleness of mind, extreme debility, unbounded confidence in a brother who made preparation for the drafting and execution of a will, clandestinity, uncalled for haste, impaired faculties brought about or aggravated by disease or under nourishment, functional disorders or whatever cause contributing to diminished consciousness, memory, attention, concentration, calculation, ability to appreciate the significance of events and power to recall them, are all circumstances which could add to or heighten the suspicion aroused in such a special class of cases of a man preparing the drafting and execution of a will and taking under it a substantial benefit. See Barry v. Butlin, supra. p.487; see also generally p.162 of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate.

15. The question of knowledge and approval of the contents of a will is not so narrowly affected, as in the case of a suspicious bounty, by only the circumstances attending or relevant to the preparation and execution of the will itself. See In re R., deceased [1951] P 10 at p.17; In re Stott, deceased [1980] 1 WLR 246. Subject to relevancy, obviously all facts would bear on credibility and reliability, hence on knowledge and approval. Save for perhaps an inaccurate comment in the editor's notation, the Canadian case Eady v. Waring 43 DLR(3d) 667 does not seem to part company with these general concepts.

    "Certain circumstances, in themselves, once admitted, raise doubt as to knowledge and approval and obliged those setting up the will to call evidence to dispel them". Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, p.158. Hence doubt of every conceivable kind plays a role in the assessment of weight and sufficiency of evidence. Also, it must be appreciated that suspicion may be such that it could hardly or ever be removed in any given case, including the special class of cases where a legatee was instrumental in the framing of a will and obtained a bounty by that will. Viscount Simonds left us with a gentle reminder of the obvious in Wintle v. Nye [1959], 1 WLR 284 at p.291: "It is not the law that in no circumstances can a solicitor or other person who prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases, the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on other hand, be so grave that it can hardly be removed."

16. In the absence of any degree of "fraud" in the sense I have endeavoured to highlight, when a testator has testamentary capacity and has had his foreign will interpreted to him and has thereupon executed it, that would raise a "grave and strong presumption that the will has been duly and properly executed by the testator". Fulton v. Andrew, supra. p.469 per Lord Hatherley. At p.473 Lord Hatherley noted that regard must be had to the amount of evidence placed before the court as to whether it was made clear to the mind of the testator what dispositions he was in fact making by his will. When verbal instructions were given to an intermediary who repeated them to a solicitor, "the opportunties for error in transmission and on misunderstanding and of deception in such situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion, and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity". Battan Singh v. Amirchand [1947]. AC 161, p.169. If signed instructions from a testator in his own language were passed on to legal advisers, the warning of their Lordships should not be as rigidly applied and with as much strictness. Generally, an intervention by a solicitor at the time of execution with proper explanation and, if need be, also interpretation would suffice unless the testator's testamentary capacity is in doubt. In Battan Singh, the testator in the last stages of consumption had been reduced to extreme weakness. He confirmed to the solcitor-in-charge that he had no relations elsewhere than in Fiji. That was incorrect. Evidently, in such a case a different situation would arise. At p.172, Lord Normand, in delivering the judgment of the Privy Council, drew the following distinction : "The opinion of Mr Davidson (the solicitor) and some other witnesses that (the testator's) mind was clear and logical and sound, though it might have had some value if the question had been one of his general sanity, is of no value in the present case where the question is whether there was a particular defect of memory caused by weakness of decease." Their Lordships concluded that despite the solicitor's professional participation, the will of the testator was the product of a man so feebled by disease as to be without sound mind of memory at the time of execution and was therefore invalid. Moreover, the transmission of signed instructions to a firm of solicitors must be put on a different footing.

17. These are the main general principles for my observance, but the touchstone is really, in the circumstances, whether the 1986 English Will now being propounded has been proved to be the true last will of the deceased and to express his real intentions. If the 1986 English Will should fail to pass the test, then by consensus the 1985 Chinese Will is to be probated. Mr Baron Park summed it up somewhat rhetorically in Barry v. Butlin, supra. : "(The party propounding a will) must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator."

18. As for alleged undue influence, closeness of relationship would not by itself raise a presumption of such an influence. For our purposes, undue influence is active coercion, "coercion to make a will in particular terms" and "there must be positive proof of coercion overpowering the volition of the testator". In sum, "there is no presumption of undue influence, which must be proved by the person who sets up that allegation", and "..... the person who affirms the validity of the will must show that there was no force or coercion depriving the testator of his judgment and free action and that what the testator did was what he desired to do". He must also show that "the act of the testator in making the will or gift must be inconsistent with any hypothesis but undue influence." See pp.45 & 46 Williams Law Relating to Wills 6th Edn. Vol. I.

19. These proceedings were protracted and highly charged with emotions. It was only through the tact and restraint of counsel on both sides that litigation time was managed to be kept within reasonable bounds. The deceased died on 3rd April 1986 and the writ was filed on 12th September 1988, almost 2 1/2 years later. In between, there were approaches, discussions and negotiations. There was even a mediation through Mr Norman Mar Ming-cheung of Australia. At one time, a settlement agreement bearing the date 17th June 1988 was ready or almost ready for signatures. Principally because of the multifarious allegations raised, I deliberated on the issues hard and long, testing one probability against the others and on its own. I have had also the advantage of a careful re-reading of the whole of the evidence after the conclusion of the proceedings. The more one acquaints himself with the facts, the less one finds it necessary to elaborate on all but the very central aspects in support of his conclusion. I have had regard to all the contested issues, although some have escaped a specific mention in this judgment.

20. The alleged lack of testamentary capacity was only belatedly raised in the telephone conversation between Joan Ma, the 2nd plaintiff, the daughter of the 1st plaintiff, Mr Ma Po-chim, and her uncle, the 1st defendant, Mr Mar Lok-Shan. At the family meeting on 21st April 1986, the 1986 English Will was to be shown to family members. The 1st plaintiff, Mr Ma Po-chim, left the gathering and the 3rd plaintiff, Mr Ma Chiu-wan, did not attend. Apparently both were not agreeable to Mr Mar Lok Shan's suggestion for an unwelcome outsider, Mr Ng Kwok-wai, to intrude. Mr Ng kwok-wai is the deceased's surviving brother-in-law but is not a beneficiary. The 1986 English Will soon came to the notice of all, but no feebleness of mind was promptly or at all suggested until the telephone conversation between Joan Ma and Mr Mar Lok-shan in the evening of 3rd August 1988. The 3rd plaintiff, Mr Ma Chiu-wan, saw fit to renounce his right to executorship under the 1986 English Will by his letter to solicitors dated 22nd September 1986. Neither in his disclaimer, nor at any time soon thereafter, did he make any complaint about the deceased's alleged testamentary incapacity. On feebleness of mind, the plaintiffs caused to be called no independent eye-witnesses. However, the analytic opinion of Dr Robert Ho was solicited.

21. After the first operation by Dr Laid on 3rd January 1986, the deceased was found to be suffering from advanced cancer. His illness was terminal. The deceased was 76 and was in a debilitated state. He was vitally supported intravenously with only a low 500-600 calories engery oral intake daily. A tumour is a destructive metabolism, consuming nutrition from the body. Dr Robert Ho was of the opinion that the deceased's illness together with consequential jaundice, electrolytic imbalance, vitamin deficiency and a severe weakened and diabolic state would affect his physical and mental functions. He concluded that a patient in the condition of the deceased would be prone to becoming confused and was unlikely to retain his testamentary capacity. He suggested that a neurologist like himself would be in a better position to entertain testamentary capacity. But he agreed that the surgeon, Dr Lam, had an advantage over him as the doctor in attendance. He also agreed that in an ordinary case, anyone was able to conduct a simple test on mental capacity needed to make a will. But he maintained that it would be more reliable to test for memory functions. In an equivocal case, so Dr Robert Ho explained, a neurologist like himself is better qualified for a memory functions test. Dr Robert Ho stressed the fact that it would be all the more important to include a test for memory functions in this case where the deceased had a great many potential beneficiaries and was expected to formulate and balance intricate dispositions with sensitive implications. His view was that writing itself was a complex process involving a high degree of co-ordination, particularly, in small Chinese characters. However, Dr Robert Ho conceded that the physical and mental state to sustain his conclusion must be one of serious deterioration. Attention was drawn to the body weight of the deceased, which remained constant between his two operations. Confining to medical records, Dr Ho claimed to be more than 50%, 60-70%, confident in his assessment. Medicine is known to be an inexact science. On what were available to Dr Ho as medical records, much was in the Chinese language, which he was not wholly familiar with and did not therefore examine.

22. Mr Ma Po-chim, the 1st plaintiff, is the eldest son of the deceased. He painted a bleak period of hospitalisation of the deceased. He told the court that except for the first 8/10 days after the first operation on 3rd January 1986, the deceased could hardly speak. He was feeble and tired. He was totally bed-ridden and constantly staring at the ceiling. He appeared to be behaving out of character in his lack of interest in his usual newspapers-reading and he seemed to have completely lost his will to live. He could only manage writing one or two Chinese characters with a shaking hand and the deceased was barely able to sign. After the second operation, for a short spell of 8 to 10 days there was an up-swing in the deceased's spirit, but then he lapsed into a worse mental and physical state. Often he only opened his eyes for 2 - 3 minutes at a time and he ignored his visitors. He again seldom spoke and stared at the ceiling. Most of the time he closed his eyes, apparently resting. When the deceased was making a real effort to speak, he could only blurt out one or two words and with difficulty. He was unable to deliver or finish a complete sentence. His utterances were very difficult and sometimes impossible to understand. He did not appear to be able to concentrate. He was very feeble and he showed no interest in his surroundings. From his observations of his late father's pathetic conditions, Mr Ma Po-chim described him as being not of sound mind. He took the view that the drastic changes in the 1986 English Will were not the product of a man of sound mind, memory and understanding.

23. Mr Ma Chiu-wan, the 3rd plaintiff, is the youngest son of the deceased. He tried to, but not very successfully, set a scenario of the deceased's debilitated and diabolic state. He described the deceased's attitude after his first operation as being indifferent. There was little display of emotion, gazing at the ceiling and signalling from time to time for his itchy limbs to be attended to. Mr Ma Chiu-wan describes his father's condition as worse after the second operation. He could only communicate by word or gesture his simple demands such as a request for a drink of water. The deceased could not speak and when he made a painful attempt to do so, he could only produce an almost inaudible sound from "the bottom of his throat", of which not more than 10% could be understood. Since mid-February he was mentally poor with a bad memory. He could barely write and only shakily when he tried, as in the case of his signature on the Power of Attorney dated 22nd January 1986. At some stage, his father could not understand or balance the interests of the beneficiaries. Even with a proper interpretation, his father would not have been able to appreciate, follow or capture all the complex provisions in the 1986 English Will. Mr Ma Chiu-wan described his father's memory as failing and volunteered an incident in support of his assertion. He claimed that his father was rather confused "because he would ask again whether rent had been collected or not after he had asked about collection of rent". He explained that he gave due dates for the mortgage instalments, for rental and the signing of tenancy agreements to his father. Mr Ma Chiu-wan was uncertain as to dates and less than specific as to the alleged stages of his father's deterioration during hospital confinement. He confirmed that his father was not in a coma a day or two before he died when he visited him. His father's condition was normal during that last visit, and he nodded to him acknowledging his presence. It is fair to say that as the most loved son, Mr Ma Chiu-wan would have continued to visit his late father on the following and subsequent days if he had even sensed any imminent danger of death. He also maintained that his father was unable to write more than 8 - 10 characters and that at a later stage he scribbled unintelligibly as in D8(1) and D8(2). Mr Ma Chiu-wan referred to the last draft of the 1986 English Will, the (p.83) 1986 draft, as an illustration of his father's inability to write. He claimed that with his shaking hand, the deceased might not be the author of some vertical strokes and some over-writings in that (p.83) 1986 draft. From Mr Ma Chiu-wan, it would seem that the deceased, though less alert and receptive in a weakened condition, retained his full faculties to the end and was a willing recipient of detailed information of his own affairs.

24. Madam Vicky Ma is the wife of Mr Ma Po-chim, the 1st plaintiff. She attended on the deceased during the day. She described the deceased's intake of solid food as minimal. He seldom spoke and would signal his wants by knocking with his hand or cup Sometimes he would gesture with his finger or shake the bed guard for either water, a rub or some attention. Occasionally, the deceased would utter a word but it was difficult to understand. He looked exhausted and would fall asleep even when being spoken to. She had never seen the deceased write or read. After mid-February, she claimed that the deceased felt constantly tired. She was reluctant to describe the deceased as being of unsound mind, but she was adamant that the deceased would not have otherwise left out any granddaughters in the 1986 English Will. She described the visit of the deceased's best friend, Mr Lee Tung-ming with she and her daughter Joan Main attendance. Instead of hearing the deceased saying to Mr Lee, as did Joan Ma, that his friend should frequently give guidance to Joan as a member of a junior generation, Mrs Vicky Ma testified that the deceased barely managed to say "Dor Dor" meaning "again and again" or "frequently" and only succeeded in his third attempt. It was she who prompted and enquired of the deceased as to whether he meant to say "frequently giving guidance to a member of a junior generation", and the deceased nodded.

25. Joan Ma claimed to have been shocked on seeing the condition and appearance of her grandfather on her first visit after her return from London on 12th March 1986. She paid almost daily visits to the Hong Kong Sanatorium Hospital. Her grandfather was feeble, sallow and extremely weak. He would just nod or shake his head. He would motion with his finger for giving simple commands. Communication with the deceased seemed to be always one-sided, and much was left to surmise as to whether the deceased, in fact understood, and what his response, either in signals or gesture, meant. Her grandfather had become a pathetic and wasted human being, in a vulnerable state. She did not see him read. When his grandfather scribbled, his writing was undecipherable as in some sample writings shown to her either by her aunt or the nurse. She described the visit of Dr Lam, in which the deceased implored him not to hesitate to give her guidance, again and again. According to her aunt, Madam Ma Pit-chee, the eldest daughter of the deceased, the 7th defendant in the Counterclaim, Joan Ma communicated with her by telephone on 3rd April 1986, passing on the sad news of the deceased's death. In that telephone conversation, Madam Ma Pit-chee was given to understand that apparently the end came peacefully as even on the day before, i.e. 2nd April 1986, a friend Mr Ma Hin-fong visited the deceased and her grandfather managed a smile and shook hand with him It is not surprising, therefore, that not until over three years after the death of the testator, did the plaintiffs through Joan Ma belatedly complained, for the first time, testamentary incapacity in a telephone conversation with her uncle Mr Mar Lok-shan, the 1st defendant. The transcript of the recorder conversation is "P5".

26. In essence, these four witnesses including the granddaughter were called with the hope to substantiating particulars (d), (e) and (f) given under paragraph 12 of the Amended Statement of Claim.

27. As for the deceased 's speaking ability, Mr Mar Lok-shan was summoned by the deceased for frequent daily consultations. Mr Ma Chiu-wan, the youngest son, told the court that since Mr Mar Lok-shan had the confidence of his late father, the brothers and sisters had no alternative but to allow Mr Mar Lok-shan to become the attorney when the Power of Attorney was proposed, which was finally executed on 22nd January 1986. Madam Ma Pit-chee, the 7th defendant in the Counterclaim and the eldest daughter of the deceased, served him in the night. She testified that the deceased suffered from no speaking disability. She finally left Hong Kong on 26th February 1986 after her late father's second operation. Her husband's leave was expiring but I have little doubt that if the deceased's condition had been unstable, she would have chosen to extend her stay. In serving the deceased, she overheard him thinking aloud about the concept of 5 + 7. She also heard her late father speak to himself the words "for life" as well as the last insertion in the (p.83) 1986 draft in Chung Shan dialect. She managed to provide an imitation of that in Chung Shan dialect in the witness stand when she had P83 at hand.

28. Madam Ma Pit-chee struck me as a straight-forward witness. In her reconstruction of the past events, there might be some overstatements as to what precisely the deceased was overheard to have said to himself. But Madam Ma displayed a determination to adhere to the truth in her own way. I accept that the deceased was doing mental arithmatics aloud, mentioning the words "for life" and making some audible endeavours to formulate that last inserted sentence in the (p.83) 1986 draft. Once, she came to be aware of the substance of the Statement of Claim, she attempted to dissuade her brothers, Mr Ma Po-chim and Mr Ma Chiu-wan, from proceeding further with this action. It was not suggested that she was deliberately fabricating any untruth but that she is an over pious person, naive and easily swayed. It was submitted that she was either mistaken or wholly unrealistic or otherwise indoctrinated by Mr Mar Lok-shan. I am unable to agree with any of these suggestions. I find her an impressive witness, though rather inarticulate but unhesitatingly open and frank. Indeed, from my exposure to the evidence of Joan Ma and Mr Mar Lok-shan and other members of the Ma family, it is difficult to imagine that any of them could be discouraged from saying his/her piece or would fall a victim to the persuasion of the others.

29. Next I turn to the independent witnesses. Mr Lee Tung-ming who is an elderly gentleman of 80 proved himself able to recollect and have a good grip on events and dates. He gave his evidence in an exemplarily logical sequence. He visited the deceased on alternate dates until the middle of March. In fact, he met Joan Ma and Mrs Vicky Ma in the Hong Kong Sanatorium. His visits lasted from 45 minutes to an hour each time. In his 8-10 visits to his best friend, he was 3/4 feet away, and the two of them talked generally about shares, current affairs and, naturally as a matter of courtesy, about the deceased's state of health. According to Mr Lee, the deceased had strength to speak; he did not gesticulate instead or in aid of his speech, but he would often "think for a while before he said something". His condition was not noticeably different from the days when he was well. Signs of fatigue were visible, but he was not very tired. To his best friend, the deceased did not appear to be different in appearance. Mr Lee was adamant that there had been no appreciable change in the deceased throughout. The deceased expressed full self-confidence in his recovery. Mr Lee had witnessed the deceased's 1985 Chinese Will and the deceased was passing remarks on the need to "make preparation" for a will in good time. Mr Lee conceded that his own memory was not as good as it used to be, but that was just a modest realisation of an elderly gentleman. He offered to name his 13 grandchildren. In almost every way, he was a good witness.

30. Mr Wong Siu-kui had worked for the deceased for 6 to 7 years. He visited the deceased twice on successive days and found him in lively spirit. On his first visit, the deceased asked for his finger nail to be clipped and honey to be brought. He stayed most part of an hour. There was little conversation.  His last visit was some twenty odd days before the deceased died. That must have been in March 1986. There had been two earlier visits in February 1986. Not much conversation passed between master and servant. The deceased spoke few words but asked him on one visit if he wanted a meal. According to Mr Wong, the deceased had been given a nickname, carrying the meaning of a man speaking like a mosquito. He spoke in a soft low voice even when he was up and about. The deceased looked pale and thin, but he nodded his head and smiled in greeting when Mr Wong was leaving. The deceased appeared to be in a better spirit on Mr Wong's first visit in mid-February than on his last visit some 20 days before he died. From Mr Wong's evidence, we had a testator very much in control of himself.

31. Dr Lam, the surgeon, confirmed the deceased as not suffering from any speaking disability on the day when the 1986 English Will was executed, 3rd March 1986. He did not find it necessary to put his ear near the deceased's mouth to capture what he said. In the Chinese medical notes, on 3rd March 1986, the deceased was not recorded as being even tired. Dr Lam attended on the deceased from first to last. He did not find the deceased incapable of will-making but the deceased was definitely becoming gradually weakened by reason of his ailment and inadequate oral intake. He suffered from consequential disorders including an electrolyte imbalance with sodium deficiency. His conditions were being redressed by fluid drips. The deceased was in a catabolic or wasting stage. Dr Lam's observation was that he could speak but mostly passive in conversation. His physical condition was deteriorating progressively but mentally he was no different. Dr Lam was satisfied on 3rd March 1986 that the deceased was of sound mind and had a clear mental picture. He tested him on some simple questions as to where he was and whether he understood what was happening. The deceased was slowly losing ground but his condition was rather stable. He was aware that people were coming from the lawyers' office and he knew what he was doing. Dr Lam had no knowledge of the complexities in the contents of the 1986 English Will. Having been driven to make some ambiguous concessions, he concluded : "If you told him certain thing, if he could hear it. I am sure he could understand. " He readily conceded that the deceased's power of concentration had been impaired from the time of his admission and that it became worse from operation to operation. After the second operation, often he had to shout or be near to the deceased in conversation, but the deceased himself had no disability in speech on 3rd March 1986 and previously. Dr Lam did not test the deceased for memory or cognitive functions. He made no in-depth assessment of orientation as to time, place and persons. His test took much less than half an hour. He was unaware of the legal definition of testamentary capacity. His examination was criticised as perfuntory and cursory. Complexity is a relative word. The provisions in the 1986 English Will were explained and interpreted reasonably well to the deceased by professional people and Dr Lam did not have that benefit. He was the surgeon of the deceased throughout. With the deceased in as sound a condition as he was and appeared to be, Dr Lam's examination was all that was needed. He was firm on his conclusion. He was the surgeon at the scene. I have no hesitation in preferring his assessment to the postulations of Dr Ho and I accept it.

32. The deceased's writing ability was demonstrated by the (p.80) 1986 draft and the (p.83) 1986 draft. He signed an Acknowledgement for his solicitors, Exh.D7(139). Working backwards, the deceased was also involved in the document for the proposed sale of property to Madam Ma Pit-chee at $230,000, P132, dated 17th February 1986, the note for the $10,000 to Madam Ma pit-chee in P137 dated 21st February 1986, and the Power of Attorney, P91, dated 22nd January 1986. This Power of Attorney was not challenged.

33. As for the deceased's memory, Mr Lee Tung-ming related the substance of his conversations with the deceased on his hospital visits. Mr Ma Chiu-wan, the youngest son, told this court how he fed detailed information to the deceased as to mortgage instalments, due dates for rental and tenancy agreements. Even after the execution of the 1986 English Will, on one visit of Dr Lam in the presence of Joan Ma, the deceased was at least sufficiently alert to be courteous to the doctor by inviting him to constantly guide his granddaughter Joan.

34. I accept and prefer the evidence of witnesses on testamentary capacity of the deceased called on behalf of the 1st and 2nd defendants as well as Madam Ma Pit-chee. In view of their overwhemling evidence, I am unable to accept any assertion or suggestion that the deceased was not, at any time except shortly before his death, of sound mind, memory and understanding. The deceased was a man well versed with the Chinese language. He was accustomed to and good at drafting wills for himself and others, including one for Mr Mar Lok-shan and his wife. He was active in society and was a successful business man. His properties were not too numerous or widely spread and his corporation equities were fairly limited. After all, on the estimation of Mr Ma Po-chim, a man working for the Inland Revenue Department, his estate is not expected to exceed some $4M. His beneficiaries are many, but he had dealt with the same personalities for years. From my examination of his previous drafts and wills, he was no stranger to balancing the shares among his issues, particularly in the constant variation as regards the inclusion or exclusion of his granddaughters. I am wholly convinced that at the time of the preparation and execution of his 1986 English Will, the deceased fully understood the nature of the dispositions including the changes he had chosen to make. He had clearly in mind the assets he was about to dispose of and the persons who had a claim to be the objects of his bounty. I have no doubt that he understood the extent of his estate and fully appreciated the manner and ratio in which his estate was to be distributed.

35. As for knowledge and approval of the 1986 English Will by the deceased, it was interpreted and explained to the deceased by miss Angela Hau, a solicitor's clerk in the presence of Mr Ng, a solicitor. Mr Ng was then a newly qualified man but hestarted his career with the cautious practice of insisting upon a certificate from a doctor as to the mental state of an intending testator when a will was being prepared for execution in hospital. It was because of this self-imposed discipline and not the condition of the deceased that he advised a doctor's examination.

36. Both 1986 drafts for the 1986 English Will were prepared in secrecy, but that had throughout been the habit of the deceased as in the case of his 1985 Chinese Will and its two drafts and his 1981 Chinese Will. The deceased had run two signed drafts for the 1986 English Will. He signed the (p.83) 1986 draft, the final draft, to signify his consent. Mr Ng redrafted the provision for the Ma Lun Chan Memorial Fund and gave it a slightly wider scope of application. According to Mr Ng, the solicitor, that was also clearly interpreted and explained to the deceased and he was satisfied that the deceased consented to it as he did to the rest of his will. Mr Ng had met the deceased previously on 22nd January 1986 for the execution of the Power of Attorney. Moreover, the Acknowledgement D7(139) designed to relieve his firm of unwanted liabilities on the provision for the Ma Lun Chan Memorial Fund is in the Chinese language which the deceased could himself read. The Acknowlegement did not refer specifically to the Memorial Fund but merely stating that "there may be some clauses which are of no effect". The provisions of the 1936 English Will had all to be clearly interpreted and explained to the deceased in order to give full effect to this Acknowledgement. No moral impropriety was suggested. It is difficult to imagine that Mr Ng could have, in any way, failed to ensure that the execution of the 1986 English Will was properly processed. Mr Ng also showed the Chinese names and fractions in the 1986 English Will to the deceased personally. He was satisfied that the deceased fully understood its contents. Even with the medical certificate, as a rule, Mr Ng would have asked questions and reached a conclusion on his own. He would have concluded by enquiring from the testator whether he was willing to make the will and whether there was any provision he wished to be altered. He was satisfied that the deceased was a voluntary and free agent and he was satisfied that the deceased would not wish any amendments to be made. I accept Mr Ng as a witness of truth and his recollection, aided by his practice and the documents, as accurate.

37. It would have been more satisfactory to adduce evidence from the Mainland nurse attending on the deceased and Miss Angela Hau. But the evidence before me is more than enough. I am completely satisfied that the deceased knew and approved of the contents of the 1986 English Will.

38. As for undue influence, I am not persuaded by counsel for the contesting defendants that Mr McCoy had laid no proper foundation for raising this issue. Undue influence is frequently sought to be established by inferences drawn from primary facts. The deceased was described as a man of a strong will. It is true to say that Mr Mar Lok-shan enjoyed the unbounded confidence of the deceased. He had just been appointed his attorney. He alone received the dictation in the evening on 20th February 1986 for the (p.80) 1986 draft, dated 21st February. That (p.80) 1986 draft was conceded by Mr Mar Lok-shan as one for discussion purposes only. Mr Mar Lok-shan further stated : "Then came the other document which I gave careful thought and study for him." There were other matters capable of raising suspicion : the trust of the deceased, which even the children dreaded to interfere, the apparent haste with which the drafts were prepared and in clandestinity, the overwritings on the (p.83) 1986 draft, and absence of an additional witness on that and the earlier drafts, the convenient availability of Mr Ng Wah-chee for witnessing, the absence of prior independent legal advice, the significant changes in beneficial bequests and their inequality, the shifting of the appointment for the execution, the retention of the 1986 drafts. I shall return to these later in my judgment. These aspect, should they either separately or together raise well founded suspicions, could have been aggravated by the debilitated state and weakened condition of the deceased. Taking a bird's-eye view, for the reasons I shall later give I find nothing truly suspicious. Even Joan Ma was willing to concede the possibility that her uncle Mr Mar Lok-shan was misguided rather than despicably devious. Moreover, from the deceased's character as reflected in the evidence of almost all including his best friend, it is quite unthinkable to suggest that he could be open to undue influence. His firmness and self-confidence must have reappeared as ingrained qualities in one or two of his issues who I had the opportunity of observing in this trial. The deceased himself had strong will. There was no opportunity for pressure to be exerted. He was surrounded by friends and relatives during visiting hours. Dr Lam attended on the deceased at least twice a day. His best friend Mr Lee Tung-ming visited the deceased 8 to 10 times until about March. His employee also came. Not one of these witnesses had expressed any fear of the deceased being overpowered by the undue influence of his brother. Nothing said or suggested of or against Mr Mar Lok-shan in this case could be regarded as wholly inconsistent with any other hypothesis but a case of undue influence. The evidence, in fact, pointed the other way. It was Mr Mar Lok-shan, the younger brother, who had been somewhat dominated by the deceased. No direct evidence for a case of actual coercion was given; nor could it be legitimately inferred. Up to the very end, the deceased was a free agent.

39. Mr Mar Lok-shan was not a good witness. He sought to provide an explanation for every aspect in the case. In order to give credence to some of his explanations, he virtually forced himself to start afresh each time in the hope of linking his explanations to some of the events. At times, he let himself into an awkward situation by volunteering excuses or explanations for past unguarded or incautious actions or omissions. Very few men could or dare account for everything that has transpired. He was also over-zealous in trying to project an image of a well respected senior. This family had had more than their fair share of unpleasant scenes. However, the essence of his evidence, together with the supportive evidence from the other witnesses of the contesting defendants, have driven me to the conclusion that there was no case of actual coercion in which pressure was made to bear on or otherwise exercised to overpower the volition of the deceased in the making of the 1986 English Will. These testamentary provisions represented his own wish. I have dealt generally with Mr Mar Lox-shan's unguarded generalisation and other strained explanations which are dubious. His description of the dictation and preparation of the 1986 drafts, though intersperded with like defects, is, I accept, truthful. Mr Mar Lok-shan and Mr Ng Wah Chee were both probably inaccurate in describing the number of Chinese characters missing in the 1985 Chinese Will. Mr Lee Tung Ming did not elaborate on precisely how many characters were added before he signed as a witness. This does not seem to be good justification for drawing an inference of a rehearsal drill between these two men. The suggested motives made against Mr Mar Lok-shan based on his entitlement to his own father's estate is unworthy of my serious consideration. Mr Mar Lok-shan retained the two 1986 drafts. His taking of dictations and retention of these drafts are not, on my findings, very crucial to the real issues.

40. I do not accept that the deceased's brother, Mr Mar Logic-shan, who was instrumental in preparing the 1986 English Will had, in effect, a substantial benefit under it. Counsel for the contesting defendants conceded that Mr Mar Lok-shan had arguably a substantial benefit as he was in a position to manipulate that for himself. But it is more true to say that Mr Mar Lok-shan could take unfair advantage of his fiduciary position by breaches of trust, but that cannot be regarded as a benefit, letting alone a substantial benefit. Keepers of bank vaults have no potential benefit. Pilferage is not countenanced by the law. The opportunity of securing an advantage by unlawful, improper or dishonourable means cannot be said to be a benefit. However, I shall proceed on the assumption that Mr Mar Lok-shan had some potential benefit of substance under the 1986 English Will, but exercising judicial care and vigilance as I have, for the reasons I am about to give, I can find no real suspicions from the relevant circumstances.

41. Mr Mar Lok-shan was the only eligible member of a senior generation. He enjoyed the deceased's trust and confidence. He was an obvious choice to be trustee of the Ma Lun Chan Memorial Fund. Mr Ma Po-chim had shown himself to be difficult in refusing to disclose the lease or accounting for the deceased's half-share rental of a flat. Mr Ma Chiu-wan had earlier been dilatory in handing over the 1985 Chinese Will. The deceased was aware of these incidents.

42. It was not out of the ordinary but in fact it was a matter of pattern that the deceased had been drafting or preparing his wills in privacy. It was just as reasonable for Mr Lee Tung-ming not again to be approached as a witness of the deceased's 1986 drafts for his 1986 English Will. First of all, Mr Lee Tung-ming was constantly reminded by the deceased of his confidence in a full recovery. Further, whilst the 1985 Chinese Will was a will sent for translation by solicitors, the (p.83) 1986 draft, the Chinese final draft was in terms of signed instructions for the preparation of an English Will for execution. By then, solicitors of the deceased's own preference had, on instructions, caused to be executed a Power of Attorney. In the 1986 English Will, Mr Ng, the solicitor and his clerk, Miss Angela Hau, were the attesting witnesses. There seemed to be no compelling reason to trouble Mr Lee Tung-ming again. According to Mr Lee Tung-ming, the deceased did mention the desirability of having one's testamentary affairs well arranged in advance. That could well be a remark directed at past or pending will-making. Be that as it may, I am not at all perturbed by these and the other circumstances in this case.

43. The (p.80) 1986 draft and the (p.83) draft were prepared apparently in haste, but it was the personality of Mr Mar Lok-shan to drive any undertaking to an expeditious conclusion. Furthermore, he was heavily involved in his own work. At the same time, Mr Mar Lok-shan was pre-occupied with family meetings, family arrangements, evaluation, transfers of properties and execution of Declarations of Trust, all fairly sensitive topics. Moreover, once it is accepted that the deceased had been in the habit fo drawing up his wills in secrecy, confidentiality would itself call for speed. Mr Ng Wah-chee, the employee of Mr Mar Lok-shan conveniently presented himself twice for witnessing the Chinese drafts on the same day, once in the morning and once in the afternoon. Ignoring the slight strained explanation that Mr Ng Wah-chee happened to be at the scene by coincidence, there was really nothing sinister to have Mr Ng Wah-chee or anyone witnessing both these Chinese drafts for giving a sense of authenticity. After all, Mr Ng Wah-chee had witnessed the 1985 Chinese Will. Indeed, if both these drafts had been brought before Mr lee Tung-ming, he would have readily witnessed them as he did, without question, the 1985 Chinese Will. He would not have likely enquired into the changes his best friend was proposing to make. It would appear, therefore, more probably that it was a coincidence or an innocent pre-arrangement rather than for any sinister motive that Mr Ng Wah-chee was or made himself conveniently available to sign these two 1986 drafts, the witnessing of which was not even strictly necessary. It is hard to imagine that Mr Ng's witnessing of these two 1986 drafts had served any improper cause without delving into whimsical speculation.

44. The deceased received no independent advice for the proposed dispositions in these drafts, but the deceased had never chosen to be so advised in his earlier attempts for himself and others. The Power of Attorney was also executed without any prior independent advice just as the case of many transfers and Declarations of Trust which were implemented also in haste. Mr Ng and Miss Angela Hau were personnel from the deceased's own trusted firm of solicitors, who could have competently advised the deceased on any aspect even at that stage if he had wished to consult them. Mr Ng was wholly satisfied that the deceased wished to make no alterations and that the 1986 English Will expressed the deceased's real intentions as his true last will.

45. The time change could be quite innocent and/or inconsequential. If, in fact, it had been re-arranged to avoid any breach of confidentiality of the 1986 English Will, that could not have cast any suspicion. The 1986 English Will introduced substantial changes from the provisions of the 1985 Chinese Will in a matter of less than 2/3 months. By about 10th February the deceased was becoming uncomfortable again after the 2nd operation, and it was then that the deceased was minded to make another will. Medical expenses had to be met and properties were expected to be sold. There was no telling how much longer the deceased would have to be confined in the Hong Kong Sanatorium. Later, the Power of Attorney was executed, and the preparation of the two drafts for the 1986 English Will soon followed. The overwritings on the (p.83) 1986 draft would be more consistent with the deceased's determination to have his instructions legibly written. By themselves, these overwritings would not necessarily cast suspicion. In the 1986 English Will, the 2nd defendant, the son of Mr Mar Lok-shan, gained a mere half a percent more of a much reduced corpus. A substantial portion of the estate would go to the Ma Lun Chan Memorial Fund. Mr Mar Lok-shan himself became only a trustee for life and the mode for the election of a new trustee was a modification introduced by the solicitor, Mr Ng. I have compared carefully the 1981 Chinese Will, the 1985 Chinese Will and its two earlier drafts and the two drafts for the 1986 English Will with the 1986 English Will itself. In the 1981 Chinese Will, 5% was carved out for the Memorial Trust Fund. In the 1985 Chinese Will and its drafts, $100,000 was so allocated. In the 1986 English Will 14/114ths of the residuary estate were similarly reserved. That is an increase to 12.28%. As the old Sincere shares represent about $1-2m, 12.28% of the remaining $2M would be somewhere in the region of $240,000, only about $140,000 more than the $100,000 provided for in 1985. The old shares were, in any case, agreed not to leave the family but to be held for their common benefit by Mr Ma Chiu-tsan who worked in the Sincere Company and Mr Ma Chiu-wan, the youngest son of the deceased. The shares of the beneficiaries varied from stage to stage. There seemed to be a set pattern to neglect some granddaughters in one or the other will. Joan Ma seems to have been always included but a choice would then be made between the daughter of Mr Ma Chiu-tsan and the daughter of Mr Ma Chiu-wan. In 1981, the three daughters of Mr Ma Chiu-kwan and the daughter of Mr Ma Chiu-wan were omitted. In 1985, none of the granddaughters was left out, but five were given only 300 ordinary shares of the Sincere Company; Joan Ma and the daughter of Mr Ma Chiu-wan were given more. Joan Ma was to take the deceased's share in Flat 4C, 126 Austin Road, and the daughter of Mr Ma Chiu-wan ranked with a grandson at 5%. For the two drafts of the 1985 Chinese Will, the three daughters of Mr Ma Chiu-kwan and the daughter of Mr Ma Chiu-wan were omitted in the early draft, the (p.68) 1985 draft. In the later draft for the 1985 Chinese Will, the (p.67) 1985 draft, again the three daughters of Mr Ma Chiu-kwan together with, but this time, the daughter of Mr Ma Chiu-tsan were omitted. But in the final version of the 1985 Chinese Will, all the granddaughters were made beneficiaries but, as I said, in different proportions. Therefore it was not entirely unexpected for the four granddaughters, the three daughters of Mr Ma Chiu-kwan and the daughter of Mr Ma Chiu-tsan to be excluded in the 1986 EnglishWill. Mr Ma Leung Ho was not given any premises for accommodation of the deceased's books in the 1981 Chinese Will. Joan Ma's previous bequest of half a flat would have only a mere net value of $100,000. The cancellation of that gift and the given equal percentage to Joan Ma and Mr Mar King-tong cannot be really regarded as changes beyond a man capable of understanding what he did.

46. Assuming my analysis may, in some ways, be flawed, it need be borne in mind that a testator may be moved by capricious, frivolous, mean or even bad motives. That is his prerogative. In my view, the 1986 English Will cannot justifiably be condemned as making incoherent, insensible or radical arrangements.

47. I shall deal with some trivalities. It is denied by Madam Vicky Ma that the three daughters of Mr Ma Chiu-kwan had not visited the Hong Kong Sanatorium Hospital. But Madam Ma Pit-chee, the eldest daughter of the deceased testified that he, the deceased, was distressed by the absence of the daughters of Mr Ma Chiu-kwan during his hospital confinement. This disagreement can have but marginal relevance. It is highly unlikely that Mr Mar Lok-shan, had ever enquired from Mr Ma Po-chim the nature and extent of the deceased's assets after the deceased's death. After all, at the family meeting, p.134, the values of the deceased's properties were already agreed for the purposes of possible disposition. It is difficult to believe that the deceased's entire earthly possessions were not then under discussion. Further, there must have been little of the deceased's assets unknown to Mr Mar Lok-shan as his appointed attorney

48. As for the 1985 Chinese Will, there is a copy in the file of Mr Mar Lok-shan with the solicitors who formerly served the deceased. There was no solicitors' file opened or in existence for the translation of the 1985 Chinese Will. When the deceased was in the Queen Elizabeth Hospital, he instructed Mr Ma Chiu-wan to take charge of this 1985 Chinese Will and to present it for witnessing by Mr Lee Tung-ming. Mr Lee Tung-ming duly witnessed the same and Mr Ng Wah-chee was called upon by Mr Mar Lok-shan to be the 2nd witness. Mr Mar Lok-shan claimed to have delivered this 1985 Chinese Will to the deceased's then solicitors for translation. In the affirmation as to scripts, Mr Mar Lok-shan stated that this 1985 Chinese Will was returned to the deceased on 21st February 1986. In his evidence, Mr Mar Lok-shan maintained that the same was returned to the deceased soon after the 1986 English Will was executed on 3rd March 1986. Messrs Liu, Chan and Lam, the former solicitors for the deceased explained through Mr Ng that no file would be opened until actual work was being done. That would probably account for the absence of any file for the translation of the 1985 Chinese Will in that firm. In any case, a copy of the 1985 Chinese Will was found-in the file of Mr Mar Lok-shan. Mr Mar Lok-shan's own file was evidently opened much earlier. If, in fact, the original 1985 Chinese Will had not been given to the deceased's former solicitors' Mr Mar Lok- shan would not likely have produced to them any copy of it after the event to alert these solicitors. After dispute had arisen subsequent to the execution of the 1986 English Will, Mr Mar Lok-shan consulted Mr Ng in September 1988, and Mr Ng was not then given a copy of the 1985 Chinese Will. By 1987, Miss Angela Hau had already left the firm of, the deceased's s former solicitors. It is quite probable that the original 1985 Chinese Will was indeed given to Messrs Liu, Chan and Lam by Mr Mar Lok-shan as he so claimed in these proceedings.

49. In the telephone conversation between Joan Ma and Mr Mar Lok-shan on the 3rd August 1988, Mr Mar LoK-shan then confirmed categorically that the 1985 Chinese Will was returned to the deceased after the execution of the 1986 English Will. The affirmation as to testamentary scripts was filed over five months later in time on 12th January 1989. There would have been nothing to gain by Mr Mar Lok-shan to switch the date of the return of the 1985 Chinese Will to 21st February 1986. The (p.83) 1985 draft was handed over to Messrs Liu, Chan & Lam on 21st February. Mr Mar Lok-shan might possibly be referring to this document. This firm of solicitors could hardly claim to be perfect. They were shown to have kept incomplete files, for example, the file for the 1986 English Will opened on 24th February 1986, Exhibit D17. The English Will and the Acknowledgement D7(139) were returned to Mr Mar Lok-shan. The English Will was admittedly lost by another firm of solicitors, Messrs C.T. Chan & Co. Mr Mar Lok-shan was not asked to give a receipt for the 1986 English Will or the said Acknowledgment or for that matter, also the doctor's certificate. Further, no attendance notes were found in the file. No copy of the 1986 English Will nor of the said Acknowledgement was left in the file. There was also no copy receipt for payment which had been issued to Mr Mar Lok-shan. However that file, D17, contained a copy list of identity card numbers of the family members including the omitted granddaughters. A possible explanation is that the list originally intended for the 1985 Chinese Will and given as such was made use of by solicitors for the purpose of the 1986 English Will. For all these reasons, it would seem quite probable, as claimed by Mr Mar Lok-shan, that the 1985 Chinese Will and the list of identity card numbers including all the granddaughters were indeed given to solicitors.

50. It was queried as to why no one had reminded or pressed Messrs Liu, Chan & Lam for the translation of the 1985 Chinese Will if indeed it had been handed in by Mr Mar Lok-shan. Mr Ma Chiu-wan had supplied photostat copies of the 1985 Chinese Will to Mr Ma Po-chim and the others. But Mr Mar Lok-shan and his newphews were all pre-occupied during that period. The Power of Attorney was executed on 22nd January 1986. A family meeting for discussing loans was convened on 26th January 1985. Transfers and Declaration of Trusts were discussed on 30th January 1986. On the same day, the deceased underwent his second operation. Consequential documents were executed in solicitors office on 31st January 1986. Another family meeting was held on 2nd February 1986. The Sincere shares and the Wing Sang shares were transferred to Mr Ma Chiu-tsan and Mr Ma Chiu-wan on the 7th February. The family met again on 18th February agreeing to the values of five of the six properties. There must have been many more informal contacts and discussions. In addition, Mr Mar Lok-shan had his own business to run, and he was constantly summoned by the deceased. It is understandable why Mr Mar Lok-shan and the others had taken no further action with reference to the 1985 Chinese Will with Messrs Liu, Chan & Lam. I can find also no substance in the criticism based on payment of solicitors' fees by a man in the position of Mr Mar Lok-shan in the circumstances then prevailing.

51. Examining the circumstances, both attending or relevant to the preparation and execution of the 1986 English Will, as affected by circumstances more peripheral, there was really nothing which raised any real doubt as to the deceased's knowledge and approval of the contents of this 1986 English Will. If indeed, there were any residual doubt in the overall scenario, such residual doubts are more apparent than real. There existed ample in-built explanations. The provisions in the 1986 English Will reflected the change in circumstances and were justified by the then current events. The substance and the implications of the provisions in the 1986 English Will had been, in my view, brought home to the deceased by Mr Mar Lok-shan and those from the solicitors firm before execution. I conclude that the 1986 English Will expressed the real intentions of the deceased as a free agent and competent testator in full possession of his faculties.

52. In conclusion, I pronounce in solemn form of law for the relevant copy of the 1986 English Will. The 1986 English Will revokes all previous wills and testamentary papers of the deceased. Consequently I pronounce against the 1985 Chinese Will.

53. A positive stance was taken by the 1st, 2nd and 3rd plaintiffs. They raised multifarious issues. I make an Order Nisi for costs in this action against these three plaintiffs in favour of the 1st and 2nd defendants and Madam Ma Pit-chee and a like Order Nisi for costs in the Counterclaim.