CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

CACV 40/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 2012

(ON APPEAL FROM HCAP NO. 9 OF 2005)

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BETWEEN

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JUDGMENT

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Hon Kwan JA:

1.  On 31 January 2012, Poon J handed down judgment after a trial of 34 days, dismissing the plaintiffs’ claim in a contested probate action. He pronounced for the force and validity of a will made by Chiu Yau Chuen, deceased (“Mr Chiu”) on 5 June 2003 (“the 2003 Will”) and against the force and validity of an earlier will of Mr Chiu made on 24 December 1997 (“the 1997 Will”).  The plaintiffs were ordered to pay the costs of the defendant and their own costs were taxed in accordance with the Legal Aid Regulations.  The plaintiffs brought this appeal against the judgment.

2.  The plaintiffs are six of the nine children of Mr Chiu by a former marriage (“the 9 Children”).  The defendant, Ms Chiu Chung Kwan Ying, was the common law wife of Mr Chiu.  By the 1997 Will, Mr Chiu bequeathed his estate to all the children he had at the time, which were 14 in number.  Under the 2003 Will, the defendant was made the only beneficiary.  The 9 Children were expressly disinherited and no provision was made for any of his children, which were 16 in number.

3.  At issue in the trial was whether the 2003 Will was executed by Mr Chiu with the requisite testamentary capacity, and whether it was executed by him with the requisite knowledge and approval.

The background and factual findings

4.  The relevant background matters and factual findings were set out in some detail in the judgment and may be summarised as follows. 

5.  Mr Chiu was born in the Mainland in 1949 and settled in Hong Kong in the 1970s.  He was an astute and successful businessman and accumulated very substantial wealth over the years through investments in the property and stock markets.  He passed away after a cardiac arrest on 4 December 2004, aged 55, leaving a very sizeable estate which mainly comprised 33 flats, mostly in Baguio Villa and Estoril Court.

6.  Mr Chiu was not a healthy man.  The judge gave this account from the extensive records of his 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.[1]  Since the 1990s, he persistently suffered from poorly controlled diabetes mellitus, hypertension, asymptomatic hyperlipidemia, anxiety neuroses and chronic insomnia.  He was obese and a heavy smoker and he 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 six colonoscopies between 2001 and 2004.  Between 2000 and 2004, he was admitted to hospital on 28 occasions, five 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.

7.  Mr Chiu was married to Ms Wong Mei Ying Wendy (“Ms Wong”) in 1973.  They separated in 1989 and were divorced in 1993. The 9 Children were born of this union between 1973 and 1990.  Their names were Man Fung Mickey (daughter), Man Fu (son, the 1^st plaintiff), Man Ching Belinda-Bobo (daughter), Man Tan Catherine (daughter), Man Shan Emily (daughter, the 2^nd plaintiff), Man Pau Bruno (son, the 3^rd plaintiff), Man Lun Andy (son, the 4^th plaintiff), Man Lung (son, the 5^th plaintiff) and Man Ying (daughter, the 6^th plaintiff).

8.  When Ms Wong and Mr Chiu separated, they agreed not to make any financial claim against each other and Mr Chiu was given the sole custody, care and control of the 9 Children with liberal access to Ms Wong.  Mr Chiu took up the sole responsibility for the maintenance, support and education of the 9 Children.  He had provided accommodation to the unmarried children, located in Baguio Villa, Chi Fu Fa Yuen and Aberdeen.

9.  The three elder daughters, Man Fung, Man Ching and Man Tan left home at a young age and had not returned to live with Mr Chiu ever since.  The other six children, who are the plaintiffs herein, for most of the time lived in the various accommodation provided by Mr Chiu.  Ms Wong lived with those of her unmarried children and for a time after her major operation in 2000, in a property occupied by the deceased in Estoril Court. In late 2001 or early 2002, she went to live in Sheung Ping on the Mainland by herself.

10.  The eldest son Man Fu, was admitted to hospital on 21 and 22 April 2003 because of schizophrenia.  Ms Wong visited him in hospital and then returned to Sheung Ping.  On 24 April 2003, she was found to have committed suicide.  Mr Chiu severed his relationship with Man Fu soon after Ms Wong’s death and since then Man Fu had not stayed in any accommodation provided by Mr Chiu.  Only the three youngest of the 9 Children continued to live in accommodation provided by Mr Chiu and they last lived in Mr Chiu’s residence in Estoril Court until the probate dispute arose with the defendant in 2005.

11.  Mr Chiu formed intimate stable relationship with three other women with whom he fathered a number of children out of wedlock. Since 1990, he cohabited with the defendant and she bore him a son, Man Ho, and two daughters, between 1990 and 1995.  She helped him in managing his finances and was introduced to others as his wife. Mr Chiu took Ms Chan Koon Hing (“Ms Chan”) as his mistress in 1990, with the knowledge of the defendant. Ms Chan became his personal assistant ever since.  She bore him two daughters and a son between 1995 and 1998.  In 1993, Mr Chiu took Ms Lam Po Chun (“Ms Lam”) as another mistress with the knowledge of the defendant and Ms Chan and she bore him a son in 2000.

12.  Mr Chiu had 16 children in all. But he did not live with any of the children born of the defendant, Ms Chan and Ms Lam.  The defendant was entrusted with the responsibility of overseeing Mr Chiu’s household.

13.  Under the 1997 Will, Mr Chiu bequeathed his entire residuary estate to the 14 children he had at the time.  The estate was to be divided into 19 equal parts, with each of the sons getting two parts and each daughter one part.  Neither Ms Wong, the defendant, Ms Chan nor Ms Lam was provided for in this will.  Man Fu and the defendant were appointed joint executors.  The will was prepared by a legal executive Mr Pak Kui Shing of Messrs Day & Chan and executed by Mr Chiu at the solicitors’ office.  The fact that the 1997 Will was made was known to his family members at the time.

14.  In between the 1997 Will and the 2003 Will, there were these significant events as found by the judge.

15.  The first was the “Chi Fu Incident” [2], which was in October 1999.  At that time, the four youngest of the 9 Children, Man Shan, Man Lun, Man Lung and Man Ying were staying in a flat in Chi Fu Fa Yuen rented in Ms Chan’s name.  A quarrel broke out between Ms Chan and Ms Wong and the police was called.  It was a storm in the teacup but blown out of proportion.  Ms Wong took the three youngest children away and Ms Chan had to make a missing person report to the police.  Ms Wong instructed solicitors to write to Mr Chiu alleging that he had been neglectful in his duties as the custodial parent. In the looming custody battle, a barrister Mr Ching Wan Fung (“Mr Ching”) was engaged by Mr Chiu as well as a private investigator. The incident ended with Mr Chiu arranging for the four children to move to a rented flat elsewhere.  After the incident, Mr Chiu asked Ms Lam to install a recording device at his home to record calls made by Ms Wong and her children.

16.  The judge found that Mr Chiu was extremely upset about the conduct of Ms Wong and some of her children.  He was deeply offended, infuriated, distressed and antagonised and the serious allegations of neglect had injured his pride.  He told Mr Ching on the telephone that he had made a will and wanted to change it. The judge accepted the evidence of Ms Chan and found on the balance of probabilities that Mr Chiu had also told Mr Ching he wanted to change his will so as not to leave anything to the 9 Children[3].

17.  The judge found that the prejudice Mr Chiu had against the 9 Children arising from the Chi Fu Incident very much remained despite the passage of time[4], as in the summer of 2001, Mr Chiu summoned Man Fu, Man Shan and Man Pau to his residence in Estoril Court and asked them what had actually happened about the Chi Fu Incident.  Thereafter, he meted out punishment to them through the defendant[5].  The defendant told them to return everything, including money and jewellery, which they received from Mr Chiu back to him. Man Fu ceased receiving cheques of $20,000 from Mr Chiu for giving tuition to Man Ying.  The defendant asked Man Shan and Man Pau to return $150,000 which Mr Chiu previously gave.  Man Shan was asked to either give back what she was given or move out of the flat in Baguio Villa provided by Mr Chiu.  She moved out in October 2001, two weeks from her due date of delivery.  Man Pau returned the jewellery given to his wife.

18.  The last significant event before the 2003 Will was the “Sheung Ping Dinner”[6].  Man Fung broke the news of Ms Wong’s suicide in Sheung Ping to Mr Chiu and on 25 April 2003, he, with the defendant and Ms Lam, went to Sheung Ping. They met Man Ching, Man Tan, Man Shan, Man Pau, and some relatives of Ms Wong at a restaurant.  Mr Chiu felt he was not shown the respect he expected from some of his children at the dinner.  He was deeply offended by what he perceived to be disdain and disrespect.  After leaving some money for Ms Wong’s funeral expenses, he returned to Hong Kong with the defendant and Ms Lam.

19.  The judge found that the perceived disrespect shown to Mr Chiu at the Sheung Ping Dinner flared up the prejudice he had held against the 9 Children since the Chi Fu Incident.  And it was because of the fury and prejudice flared up as a result of the Sheung Ping Dinner that Mr Chiu decided to disinherit all the 9 Children[7].

20.  The judge accepted the evidence of the defendant, Ms Chan and Ms Lam that after returning from Sheung Ping, during the early hours of 26 April 2003, Mr Chiu told the defendant, in the presence of the other two women, that he was going to make a new will, making the defendant the sole beneficiary and executrix, that not a penny would be left to the 9 Children, that she 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[8].

21.  At about 9 a.m. on 26 April 2003, Ms Chan telephoned Ms Lilian Chiang (“Ms Chiang”), a partner of Messrs Deacons and the head of the property department, who was known to Mr Chiu.  Ms Chan informed Ms Chiang that Mr Chiu would like her to be personally involved in the preparation of his new will and relayed the instructions of Mr Chiu to her that the defendant was to be the sole beneficiary and executrix and the 9 Children were to be disinherited[9].  Ms Chiang found it disturbing and felt uncomfortable that Mr Chiu was to disinherit the 9 Children and advised that a doctor should 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”), who was Mr Chiu’s physician for 17 years, to do so.

22.  Ms Chiang prepared the new will and an advice to Mr Chiu dated 30 April 2003 in English and Chinese, advising him among other things that it is not uncommon to state in the will the reason for expressly disinheriting the 9 Children of his first marriage, some of whom are minors; that there is no legal procedure to renounce his relationship with the 9 Children; that certain classes of persons may apply to court under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 for reasonable financial provision out of his estate. 

23.  On 27 April 2003, Mr Chiu left Hong Kong for Thailand with the defendant and did not return until 26 May 2003.  On 1 June 2003, they went to Macau for a night to gamble.

24.  On 5 June 2003, Mr Chiu and the defendant attended Ms Chiang’s office for the execution of the new will.  Dr Ng also attended.  Before they were attended by the solicitors, Dr Ng purported to carry out a mental state examination of Mr Chiu to assess his testamentary capacity.  The judge found this examination was “far from satisfactory”[10] and did not attach any weight to it or Dr Ng’s certificate of the examination that was prepared by Ms Chiang and was signed by him. 

25.  Ms Chiang’s meeting with Mr Chiu alone lasted for about 15 minutes, during which she explained to him her written advice paragraph by paragraph and the contents of the 2003 Will.  She also explained to him 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 whether the will was fair, reasonable and rational.  He told her he fully understood her advice but still did not wish to state his reason in the 2003 Will for not making any provision for the 9 Children[11].

26.  Mr Chiu then executed the 2003 Will in the presence of Ms Chiang and her associate Mr Yu Wai Tung, who signed as attesting witnesses.

27.  The 2003 Will revoked all previous wills of Mr Chiu, appointed the defendant as the sole executrix and left the entire residuary estate to her and if she should pre-decease him or did not survive him by 30 days, to their son Man Ho. Of all Mr Chiu’s children, the 9 Children were singled out and expressly disinherited under clause 7 which provided:

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

28.  Mr Chiu was admitted to hospital on 3 December 2003 and died the following day after a cardiac arrest.  The certified causes of his death were acute myocardial infarction and diabetes mellitus.

The plaintiffs’ case

29.  The plaintiffs alleged that Mr Chiu did not have testamentary capacity when he executed the 2003 Will and that he did not know or approve of its contents.

30.  On the lack of requisite testamentary capacity, they relied on the following:

(1)    They called expert evidence from a neurologist (Dr Huang Chen Ya), a pharmacologist (Professor Brian Tomlinson) and a psychologist (Dr Wong Chung Kwong) in support of their contention that Mr Chiu was suffering from delirium or significant cognitive impairment during the critical period when he gave instructions for a new will and when he executed the 2003 Will (between 26 April 2003 to 5 June 2003). The alleged causes of mental incapacity included the established cerebro-vascular disease of Mr Chiu, his long standing dependence on benzodiazepines and the cocktail of drugs including psychotropics he had been taking over the years, and bereavement caused by the death of Ms Wong.

(2)    Mr Chiu’s decision to disinherit them in the 2003 Will was wholly irrational.

(3)    The examination purportedly conducted by Dr Ng prior to the execution of the 2003 Will was not a valid mental state examination.

31.  On the lack of knowledge and approval, the plaintiffs relied on the 2^nd limb of the rule in Barry v Butlin (1838) 2 Moo PC 480, which is that “if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased”. They argued that Ms Chan, who gave the instructions to Ms Chiang, was closely associated with the defendant, the sole beneficiary under the 2003 Will.

32.  They contended that all the circumstances here ought to excite the court’s suspicion and call upon it to be vigilant and jealous in examining the evidence, pointing to the manner in which Mr Chiu’s instructions were relayed to Ms Chiang, that the defendant exercised effective control over access to Mr Chiu and it was she who had asked Dr Ng to certify his mental state, and the abrupt, unnatural and dramatic change from the 1997 Will which was perfectly normal to the 2003 Will which was inofficious and irrational. They asserted that they had sufficiently discharged the evidential burden of proof and shifted the burden to the defendant, as propounder, to prove affirmatively the validity of the 2003 Will.

The judgment below

33.  The judge decided both the issues of testamentary capacity and knowledge and approval in the defendant’s favour.

34.  Regarding testamentary capacity, the judge went through with great care the evidence on Mr Chiu’s mental state according to his family members (the plaintiffs, the defendant, Ms Chan and Ms Lam); the evidence on his mental state according to independent factual witnesses who had interactions with Mr Chiu in his affairs and business and were called by the defendant – Mr Ching, barrister, Mr Hui Chun Fan, accountant (“Mr Hui”), Mr Lam Hon Cheung Tony, estate agent (“Mr Lam”) and Mr Tsang Kit Chun, auctioneer (“Mr Tsang”); and the evidence on his mental state according to the doctors who treated him over the years – Dr Ng (his family physician for 18 years), Dr Bell Tse (a neurologist, who was consulted by Mr Chiu from 1998 to November 2004 and who had performed neurological examination of him several times) and Dr John Ma (a specialist in endocrinology, diabetes and metabolism, consulted by Mr Chiu between 1997 and June 2004).

35.  The judge found on the evidence that none of the family members had detected any mental problem with Mr Chiu[12]; there was no perceivable change or decline in his mental condition between 1998 up to the time of his death in December 2004[13]; he was capable of and had been carrying out property investments between December 2002 and July 2003 and was shrewd as usual[14]; his frequent contacts with Mr Hui who handled his tax matters between 2002 and 2004 in particular an investigation of the Inland Revenue Department into his tax affairs showed he had a clear and analytical mind, independent judgment and good memory[15]. The judge found all the above indicated strongly that Mr Chiu did not have an impaired mind in the critical period from April to June 2003[16].

36.  The judge accepted the evidence of the treating doctors in full and made these findings: throughout 1998 to 2004, there was no clinical feature suggesting that Mr Chiu was suffering from dementia or cognitive impairment[17]; throughout the years that Mr Chiu consulted Dr Ng and Dr Ma, he did not suffer from any mental incapability or deterioration at any time[18]. 

37.  The judge found that the mental state examination by Dr Ng of Mr Chiu on 5 June 2003 was not performed satisfactorily and decided to attach no weight to this examination, rendering Dr Ng’s certificate useless.  The judge made clear however this did not detract from the long-term observations of Dr Ng regarding Mr Chiu’s mental condition, which he accepted[19].

38.  Turning to the plaintiffs’ case on irrationality, the judge reviewed the evidence on Mr Chiu’s personality, his relationship with his family members and the events between the 1997 Will and 2003 Will.

39.  The judge found that Mr Chiu had very peculiar personality traits[20].  He had a very strong and domineering personality.  He was chauvinistic, temperamental and irritable.  He must always have his own ways and was intolerant of anyone who dared to challenge his authority. Although he doted on his children and spared no effort in providing for them, he expected absolute respect and obedience from all his family members, and would react most strongly if he was not shown respect.  He could behave disproportionately when upset especially when he was shown disrespect.  He was not always fair.  A number of incidents showed that he was self-centred, autocratic, intolerant and capable of being vengeful.  Whilst he might be quick-tempered at times, he would not let his feelings be known openly and when he harboured discontent, he would eventually show it by his action.

40.  In the light of the findings about the Chi Fu Incident and the Sheung Ping Dinner, the judge concluded that when deeply offended, Mr Chiu could easily become biased and prejudiced and would vent his spleen against someone completely innocent[21].  That punishment was meted out to three of the 9 Children for the Chi Fu Incident only in 2001 was consistent with his peculiar personality to settle old scores long after the event[22].  He blamed Man Fu, who was quite innocent, for what took place at the Sheung Ping Dinner and severed relationship with him[23].  The judge found that it was because of the fury and prejudice flared up by the perceived disrespect to him at that dinner that Mr Chiu decided to disinherit all the 9 Children[24].  He held that the 2003 Will was not irrational in the sense that it was explicable by Mr Chiu’s personality traits and his reaction to the events and it was not evidence of an unsound mind[25].

41.  The judge then dealt with the evidence of the medical experts on both sides, which he considered together with all the other evidence he had analysed earlier.

42.  On the neurological aspect, the judge rejected the opinion of Dr Huang that Mr Chiu had a high likelihood of cognitive impairment at the material time[26] and preferred the evidence of the defendant’s neurological expert Dr Edmund Woo and the neurologist Dr Tse who had treated Mr Chiu that Mr Chiu did not suffer from any cognitive impairment as contended by the plaintiffs[27].

43.  On the pharmacological aspect, the judge rejected the evidence of Professor Tomlinson on the effect of the mixture of drugs which Mr Chiu took over the years as unsatisfactory[28].  He preferred the evidence of the defendant’s expert, Professor Tang Siu Wa, a pharmacologist and psychiatrist, that the small doses prescribed to Mr Chiu would be unlikely to cause serious side effects resulting in impairment of his testamentary capacity[29].

44.  On the psychiatric aspect, the judge rejected the evidence of the plaintiffs’ psychologist Dr Wong, who alone of all the medical experts opined that Mr Chiu was suffering from delirium, even though he acknowledged there was no evidence of any symptom of it[30].  The judge also rejected Dr Wong’s opinion that Mr Chiu was suffering from bereavement caused by the death of Ms Wong that his mental capacity was affected[31].

45.  On the basis of the above primary findings of fact and inferences, the judge held that the plaintiffs have not discharged the evidential burden of raising the lack of testamentary capacity as an issue. And even if they have, he was of the view that the evidence, both factual and medical, showed overwhelmingly that Mr Chiu did have the requisite testamentary capacity at the material times[32].

46.  As for the issue of knowledge and approval of the contents of the 2003 Will, the judge held that a presumption of knowledge and approval applied as a result of his findings about due execution of the will and that Mr Chiu had the requisite testamentary capacity[33].  Further, he accepted the evidence of Ms Chiang in full, which put the matter beyond doubt that Mr Chiu knew full well of the contents of the will and approved of it[34].  He held that the 2^nd limb of the rule in Barry v Butlin did not apply[35].  Even if the rule did apply, Ms Chiang’s evidence must have dispelled all suspicion completely[36].

47.  For those reasons, the judge held that the plaintiffs have not discharged the evidential burden of putting lack of knowledge and approval in issue.  And even if they have, the evidence showed unequivocally that Mr Chiu did know the contents of the 2003 Will and approve of it[37].

This appeal

48.  The plaintiffs filed a Notice of Appeal with grounds of appeal numbering up to 51 paragraphs with additional paragraphs in a Supplementary Notice of Appeal.  I do not propose to deal with each of the grounds of appeal separately but will endeavour to focus on salient points taken by Mr Neville Sarony, SC[38] in the appeal.

49.  By and large, there was little challenge to the judge’s statements of the law regarding the general approach for propounding a will[39], the legal principles applicable to testamentary capacity[40] and the applicable law on knowledge and approval[41].  

50.  I have set out the factual findings, inferences and the holdings of the judge at some length.  Insofar as challenge was made to the factual findings pertaining to the issues of testamentary capacity and knowledge and approval, it is pertinent to bear in mind that the task of an appeal court is to review the decision of the trial judge.  The submissions Mr Sarony made to this court on various aspects of the evidence sounded at times like submissions made to the trial judge, and indeed, he referred us a number of times to his written closing submissions before the judge saying that he relied on the same points. That is just not the right approach. We can only interfere with the primary findings of fact if we are satisfied that the judge’s conclusion on the facts is plainly wrong (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at para 42), or that no reasonable jury could have reached the judge’s conclusion (Sharp v Adam [2006] EWCA Civ 449 at para 95, said in the context of an appeal against a finding on testamentary capacity).  If we are not so satisfied, we should defer to the trial judge’s conclusion even if in some doubt as to its correctness.

51.  I propose to deal with all the plaintiffs’ arguments relating to testamentary capacity first, as capacity or the ability of the testator to understand what he was doing and its effect is a prerequisite to establishing his knowledge and approval of the contents of the will.

Testamentary capacity

52.  I start with the classic statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 laying down four criteria for testamentary capacity, which I have numbered for ease of reference:

“It is essential … that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, (4) 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 exercise 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 the mind had been sound, would not have been made.”

53.  Mr Sarony contended that Mr Chiu’s physical, emotional and mental state at the material times was compromised to the extent that none of the four elements in Banks v Goodfellow was satisfied.  In this regard, he relied on Mr Chiu’s generally poor and deteriorating health, the long history of multiple drug use, Mr Chiu’s own utterances of being “ill, very ill” in April 2003, the defendant’s own words that Mr Chiu was “even more sick” after his trip to Sheung Ping, and bereavement from Ms Wong’s death.

54.  As pointed out by Mr Benjamin Yu, SC[42], each of those matters had been considered in the judgment and the judge did not regard any of them as being capable of raising any doubt about Mr Chiu’s testamentary capacity.  It is unnecessary to repeat the relevant evidence and findings which I have already summarised earlier[43].  Mr Sarony had not demonstrated to this court in what way the judge went wrong in his evaluation and analysis of the evidence.

55.  The judge was fully entitled to come to the view on the evidence that neither the generally poor health of Mr Chiu nor the multiple drug use had brought about any impairment of mental capacity. The judge decided to give little or no weight to the utterances of Mr Chiu and the defendant in April 2003 that Mr Chiu was very sick.  He was entitled to do so in view of objective evidence before him that Mr Chiu was not seriously ill at the time.  The judge concluded on the evidence that Mr Chiu was not bereaved by the suicide of Ms Wong to the extent that his testamentary capacity was impaired, having reviewed the nature of their relationship and contrasted his behaviour of making extended pleasure trips soon after.  He was entitled to reject Dr Wong’s suggestion that Mr Chiu was hypoactive and place no weight on Man Ying’s evidence that Mr Chiu was not as happy as before and had become much quieter.  Again, all those are matters within the province of the trial judge and it has not been shown that his conclusion was wrong, let alone plainly wrong.

56.  Mr Sarony contended that the judge had failed to address the issue whether the 4^th element in Banks v Goodfellow was satisfied.  He referred to Sharp v Adam, supra at para 93 in which May LJ stated that the 4^th element in Banks v Goodfellow – “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties”, “no insane delusions …” – is concerned as much with mood as with cognition. The question whether a testator lacked testamentary capacity does not relate exclusively to his cognitive powers (at para 94).  As was demonstrated in Sharp v Adam, a testator could be found on the evidence to have lacked testamentary capacity on the basis that the 4^th element was not satisfied despite the first three elements were satisfied (see para 85).

57.  Mr Sarony argued that the judge had failed to have any or any sufficient regard to the evidence that in disinheriting all 16 of his children in the 2003 Will, not just the 9 Children, against the background of a happy relationship with all or at least most of his children, Mr Chiu was suffering from a “temporary poisoning of his natural affection for” his children, or “a perversion of his sense of right, the nature of which nobody can satisfactorily explain”[44].

58.  What is important to note about Sharp v Adam is that it was stated in para 94 that this case turns entirely on its own facts and May LJ said clearly that the decision would not result in any altered approach by solicitors involved in the preparation of wills or by the court to the question of testamentary capacity[45].  The testator in that case was in the final stages of severely debilitating progressive multiple sclerosis, the agreed effect of which was to have impaired his cognitive functions. There were no undercurrents of family conflicts and there was a very good relationship between the testator and his daughters, who were completely disinherited under a new will in favour of two employees who had been working for and taking care of the testator for years.  In the light of this evidence, there was opinion from an expert witness, which was accepted by the trial judge, the seemingly irrational decision of the testator in the new will could be evidence that the testator’s judgment was impaired and this provided an “evidential lifeline” to the daughters. 

59.  The facts of the present case are very different.

60.  Firstly, the 4^th element in Banks v Goodfellow referred to a “disorder of the mind” which poisoned the affections of the testator, perverted his sense of right or prevented the exercise of his natural faculties, or “an insane delusion” which influenced his testamentary disposition in a way he would not otherwise have done if his mind had been sound. Unlike Sharp v Adam, there is no evidence and no finding in the present case that there was any “disorder of the mind” of Mr Chiu.  It is not a valid criticism that the judge did not address the 4^th element in these circumstances.  Mr Sarony would need to overcome this hurdle first, and this he attempted to do by relying on the evidence of the plaintiffs’ expert witnesses, which was rejected by the judge.  I will come back to this topic of the plaintiffs’ expert witnesses.

61.  Secondly, unlike Sharp v Adam, in which there was no satisfactory explanation for the seemingly irrational disinheritance of the testator’s children in the new will, the judge had inquired into the possible reasons why Mr Chiu had disinherited the 9 Children and held on the evidence there was rational explanation for the decision to disinherit the 9 Children and not to make provision for any of the other children in the new will save for Man Ho as the residuary legatee in the event that the defendant should pre-decease Mr Chiu.  He accepted the defendant’s evidence that Mr Chiu had 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[46].  Unlike Sharp v Adam, no unsoundness of mind could be inferred from any irrationality in this instance, not to mention there was other evidence accepted by the judge which supported the finding that Mr Chiu possessed full mental capacity and there was a complete absence of symptoms of cognitive impairment or mental deficiencies.

62.  As noted by the judge, a testator may disinherit wholly or in part his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride[47], and the court must give effect to his will, even though the will may appear unfair and unjust to an objective and dispassionate observer, so long as the testator has the requisite testamentary capacity.  The inquiry of the court as regards testamentary capacity must be “directed to the testator’s soundness of mind, and not to general questions of perceived morality” (Sharp v Adam, para 79).

63.  This disposes of the plaintiffs’ arguments on the 4^th element in Banks v Goodfellow and the alleged irrationality of the new will.

64.  Mr Sarony made the point that with the exception of Dr Ng (whose examination and certification of Mr Chiu’s mental condition at the time of the execution of the new will was not accepted by the judge), the independent factual witnesses and the other treating doctors had not seen or heard from Mr Chiu at the material time between April and June 2003. He submitted it was “disproportionate” for the judge to rely on the evidence of the independent factual witnesses – Mr Ching, Mr Hui, Mr Lam and Mr Tsang, in that the activities in which they were associated with Mr Chiu were not comparable to the specific cognitive capacity required to make a will.  He also complained that the judge was wrong to have regard to the evidence of those family members who could detect no sign of mental abnormality during those three months[48], as their incredibility was in issue on this as well as on other matters in general.

65.  There is no substance in these submissions.  The fact that the independent witnesses and the other treating doctors had no direct contact with Mr Chiu during the critical period is immaterial.  And it is open to the judge to have regard to the evidence of the independent factual witnesses, what weight should be attached to their evidence was a matter for him.  He took the view that their evidence was strong indication that Mr Chiu did not suffer from any mental problem that might have affected his mental ability at the material times.  As was said by Gibson LJ in Hoff v Atherton [2005] WTLR 99 at para 34:

“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.”

66.  As for the credibility of the defendant and her witnesses, Mr Sarony has not begun to show a proper basis upon which this court could interfere with any particular finding of fact made by the judge in accepting the evidence of one or more of the defence witnesses.  He repeated his submission in the court below there was “mutation” of the defendant’s case on how Mr Chiu gave the instructions for the new will[49]. The judge did not find this evidence on Mr Chiu’s instructions incredible, he regarded the inconsistencies as minor, which were understandable given the lapse of time[50].  This was a view the trial judge was entitled to take.

67.  Mr Sarony endeavoured to prop up the plaintiffs’ case on testamentary capacity by relying on the expert evidence of Dr Huang, Professor Tomlinson and Dr Wong, which the judge had rejected.  Having reviewed the evidence of these witnesses, I can detect no error in the way the judge had approached and analysed their evidence.  The judge did have regard to Dr Huang’s evidence in re-examination when the doctor sought to qualify and retract what he had said in cross-examination relating to the evidence of the independent factual witnesses put to him[51].  The judge was entitled not to accept that part of Dr Huang’s evidence in re-examination.  He was entitled to reject the propositions advanced by the plaintiffs’ experts in the light of all the other evidence he had considered and accepted, such as the evidence of Dr Tse, the neurological specialist who was Mr Chiu’s treating doctor for six years and who had carried out neurological examinations on him at various times.

68.  Far from demonstrating that the judge was plainly in error, the judge was clearly right in holding that Mr Chiu had the requisite testamentary capacity when he gave instructions for a new will and when he executed the 2003 Will.

Knowledge and approval of the contents of the will

69.  Mr Sarony made a number of arguments regarding knowledge and approval.

70.  He submitted that the judge was wrong to hold that the 2^nd limb of the rule in Barry v Butlin did not apply and advanced the same arguments he made below to us, namely that Ms Chan had conveyed Mr Chiu’s instructions to Ms Chiang and Ms Chan was closely associated with the defendant, the sole beneficiary.  The judge is clearly right in rejecting this submission[52].  Ms Chan was fully aware that the 1997 Will was more beneficial from her perspective than the 2003 Will.  Her two daughters are among the beneficiaries named in the earlier will[53], whereas no provision is made for any of her three children in the 2003 Will and she would have to rely on the defendant’s goodwill to maintain her and her children.  She would not stand to gain from the 2003 Will and for this purpose could not be properly characterised as an associate of the defendant for the 2^nd limb of the rule in Barry v Butlin to apply.

71.  Mr Sarony then advanced the proposition that once the suspicion of the court is aroused, the court would look at the entire evidence and all relevant circumstances, not just evidence relating to the preparation of the will, with the appropriate degree of vigilance and jealousy, to determine whether the testator did know and approve of the contents of the will, citing Barry v Butlin, supra. at 482 to 483, and Re Yip Keung, HCAP 15 of 2004, 19 December 2007, paras 71, 72, 76 to 78. He contended that the 2003 Will was inofficious, it was a dramatic change from the 1997 Will for which Mr Chiu gave no explanation, and the provisions of the 2003 Will were known only to the defendant, Ms Chan and Ms Lam until some time after Mr Chiu’s death.  He submitted there was a burden on the defendant to dispel all suspicion with cogent evidence that Mr Chiu did know and approve of the contents of the 2003 Will. 

72.  With respect, Mr Sarony had misunderstood the ambit of the 2^nd limb of the rule in Barry v Butlin and the way he purported to apply it is plainly contrary to the authorities and must be rejected.

73.  The notion that there was a general rule requiring the propounder of a will to dispel all suspicious circumstances surrounding the will was firmly rejected by the Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387.  As Ribeiro PJ had explained at paras 209 to 221, Parke B in Barry v Butlin was not seeking to lay down such a general rule by the 2^nd limb of the rule in that case, and Tyrrell v Painton & Anr [1894] P 151 had only extended the 2^nd limb of the rule to the extent of embracing the situation where the person who had drawn up the will was someone other than the person who took under it, but where the two were closely related or associated with each other.

74.  As for the passages in Re Yip Keung relied on by Mr Sarony, the statements were made in the context that the 2^nd limb of the rule in Barry v Butlin did apply, as was conceded by counsel for the propounder of the will in that case (see paras 6 and 70).  They do not provide any kind of support for a general rule that Mr Sarony might have invoked.

75.  Mr Sarony pointed out that requisite knowledge and approval for present purpose would cover not just the contents of the will but also its effect.  “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” (Hoff v Atherton, supra at para 62, per Chadwick LJ), as was recognised by the judge[54].  It was common ground that Ms Chiang’s attention was never drawn to, and she was not aware of, the existence of six other children of Mr Chiu, apart from the 9 Children and Man Ho.  So Ms Chiang could not have explained to Mr Chiu the effect of the 2003 Will, which was the complete disinheritance of all the 16 children, as she was unaware of the existence of some of them.  Mr Sarony submitted the judge was wrong to find on the evidence of Ms Chiang that the requisite knowledge and approval was proved.

76.  I reject the above submission.  The 2003 Will is a simple will, bequeathing the entire residual estate to the defendant. By doing so, it must mean that Mr Chiu would not be leaving anything under the will to any of his children.  The effect of the will is clear. The fact that the 9 Children were expressly disinherited by clause 7 was, as stated in that clause, “for the avoidance of doubt”.  This does not connote in any way a lack of knowledge or recollection on the part of Mr Chiu that he had other children. The judge accepted the defendant’s evidence Mr Chiu had instructed her to take care of Ms Chan, Ms Lam and their children out of the assets gifted under the 2003 Will. So by making her the sole legatee, Mr Chiu was relying on the defendant to make provision for the remaining children, which was entirely consistent with the trust he reposed in her[55]. It was not surprising Mr Chiu did not find it necessary to disclose his other children to Ms Chiang.  None of the matters raised by Mr Sarony was sufficient to cast doubt that Mr Chiu did not have knowledge and approval of the contents of the will and its effect.

77.  There is no basis to impugn the judge’s finding that Mr Chiu had the requisite knowledge and approval when he executed the 2003 Will.  None of the grounds raised by the plaintiffs on appeal are of merit.

The respondent’s notice

78.  The only finding the judge made against the defendant is that no weight should be attached to the mental state examination and certificate of Dr Ng on 5 June 2003.  This is the subject of a respondent’s notice.  I propose to deal with this shortly as this does not affect the outcome of this appeal.

79.  The judge declined to accept the examination and certificate for two major reasons.  Firstly, Dr Ng did not keep any attendance notes of the examination on 5 June 2003.  The details of the examination were given in the third witness statement of Dr Ng produced in the course of the trial, which was eight years later.  The judge took the view that in the absence of attendance notes, no meaningful and objective evaluation can be carried out on Dr Ng’s recollection of the details of the examination that day and the adequacy of the examination[56].

80.  Secondly, Dr Ng said his mental state examination was tailor-made for Mr Chiu.  As accepted by Dr Woo, Mr Chiu’s decision to revoke the 1997 Will and to disinherit the 9 Children was a material change of testamentary wishes.  But Dr Ng did not know about the existence of an earlier will or the disinheritance.  The judge was of the view that a responsible doctor required to certify testamentary capacity in this situation would need to have relevant information about the change of testamentary disposition and the new will for the doctor to ask appropriate questions.  So for this reason as well, the judge held that the examination was materially deficient[57].

81.  Mr Yu contended that it was not correct for the judge to say that Dr Ng’s recall from memory of the details of the examination came eight years later.  In the course of his testimony, Dr Ng had produced a letter to his solicitors in 2005 giving a detailed account of the examination and it was based on this letter that he made his third witness statement.  Even so, there was a gap of two years that Dr Ng first came to recall the details of the examination.

82.  The judge had taken into consideration Dr Woo’s opinion regarding the efficacy of Dr Ng’s examination.  I am not persuaded there are sufficient grounds to differ from the views of the judge. 

Conclusion

83.  For the above reasons, I would dismiss the plaintiffs’ appeal. I would make an order nisi that the plaintiffs are to pay the defendant’s costs of this appeal, with a certificate for only two counsel.  For those of the plaintiffs who are legally aided, their own costs would be taxed in accordance with the Legal Aid Regulations.

Hon Lam JA:

84.  I agree with the judgment of Kwan JA.

Hon McWalters J:

85.  I agree with the judgment of Kwan JA.