CHOY PO CHUN AND ANOTHER v. AU WING LUN

CACV 177/2017

[2018] HKCA 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2017

(ON APPEAL FROM HCAP NO 7 OF 2010)

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J U D G M E N T

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The Court:

1.  On 20 April 2018, this court handed down its judgment in a contested probate action.  We allowed the plaintiffs’ appeal, set aside the judgment of Chow J that the 2008 Will be pronounced in solemn form and the costs order below, ordered the defendant’s counterclaim (in which he sought to propound the 2008 Will) be dismissed, and pronounced in solemn form the 2002 Will.

2.  We held that the judge has failed to consider and omitted to find whether two of the criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 at 565 were satisfied (if the deceased was capable of understanding the extent of the property of which he was disposing; and if the deceased was able to comprehend and appreciate the claims to which he ought to give effect)[1]. Because of this, his finding that the defendant has discharged the burden the deceased had testamentary capacity cannot stand.  On the existing evidence, even if the judge had specifically considered the issue whether those two criteria are satisfied, we found there is no evidence to infer that those criteria are met.  We declined to remit the case for a re‑trial as the parties must be taken to have adduced all the evidence they might wish to rely on in support of their respective cases[2].

The notice of motion

3.  The defendant issued a notice of motion on 18 May 2018 seeking leave to appeal to the Court of Final Appeal.  The questions for which leave to appeal is sought are set out in §24 of the notice of motion:

“(1) What is the proper legal approach to establish testamentary capacity: (i) when an experienced lawyer has been instructed to prepare a will which appears rational on its face, and has formed the opinion from a meeting or meetings that a testator understands what he is doing, in the absence of the clearest evidence of lack of mental capacity, applying Hawes v Burgess [2013] WTLR 453 (CA) at [60], [68] and Key v Key [2010] 1 WLR 2020 at [97]; or (ii) from evidential presumption arising from factual or expert evidence, and from any findings of fact and appropriate inferences? (“Question 1”)

(2) Whether and to what extent, it is necessary in law, for a Court determining whether a testator has testamentary capacity to make express findings on each of the 3 criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 (at 565) separately and specifically? (“Question 2”)

(3) When there is evidence or a finding of fact, that a testator is capable of understanding the nature of the act of making a will and its effects, whether and in what circumstances can: (i) capability of understanding the extent of the property being disposed, and (ii) ability to comprehend and appreciate the claims to which a testator ought to give effect, be established and/or inferred, with particular emphasis on the inquisitorial character of probate proceedings? (“Question 3”)

(4) When an experienced lawyer prepares a will for a testator, whether and in what circumstances, a testator is considered capable of understanding the nature of the transaction when its general purport is explained and/or read over as appropriate; or will a capacity assessment and the asking of specific questions to a testator relating to testamentary capacity be required in law? (“Question 4”)”

4.  The defendant also seeks leave to appeal on the basis that his intended appeal ought otherwise to be submitted to the Court of Final Appeal for decision.

5.  This notice of motion is not in compliance with Practice Direction 2.1 §2, which reads as follows:

“The Notice of Motion seeking leave to appeal should set out the grounds of appeal concisely and succinctly. It should not include arguments or factual allegations. It should clearly identify and properly formulate questions that meet the criteria of section 22 of the Hong Kong Court of Final Appeal Ordinance, in respect of which leave is sought to have the same to be determined by the Court of Final Appeal. Non-compliance with this direction may result in the court directing a proper Notice of Motion to be prepared and the costs of the non-compliant Notice being disallowed.”

6.  The notice of motion filed by the defendant runs up to 15 pages on single spacing.  It contains not just the questions said to be of great general or public importance but also an account of the background facts as well as arguments made on each of the questions.  It is wholly unnecessary to set out in the notice of motion the background facts taken from our judgment.  As for the arguments made on the questions, the proper place for them is in the skeleton submissions.  In this instance, the arguments set out in the notice of motion are not wholly the same as those in the skeleton submissions and some parts that are different are not specifically referred to in the skeleton submissions.  It is necessary to read both documents to comprehend the submissions of the defendant.  The court should not have to speculate whether the earlier arguments in the notice of motion have been superseded by those in the skeleton submissions served subsequently.

7.  As the parties have served skeleton submissions pursuant to automatic directions under Practice Direction 2.1 §3(a) to (c) and substantial costs have been incurred, the non‑compliant notice of motion will not be returned to the defendant in this instance.  In future, notices of motion for leave to appeal to the Court of Final Appeal will be screened more rigorously to ensure compliance with the Practice Direction.  Any non‑compliant notice of motion will be returned to the applicant and will not be considered by the court.

8.  The defendant’s counsel cited a total of 38 cases in this application.  As stated in Practice Direction 2.1 §3(e), the skeleton submissions “should direct at helping the Court to determine whether grounds have been made out for the appeal to be heard by the Court of Final Appeal”.  It is unhelpful to load the submissions with copious authorities making more or less the same point in a number of instances.

Question 1

9.  This question is not properly formulated.  It was stated in §29(1) of the notice of motion that “the answer to Question 1 should be in the positive”.  We fail to see how a “positive” answer could be given to such a question asking “what is the proper legal approach to establish testamentary capacity” with two alternative propositions.

10.  From the arguments raised concerning this question, it would appear that the contentions of the defendant are on the following lines, shorn of the many cases cited in support of the arguments.

11.  It was submitted that no proper consideration was given to the significance of certain factual findings (the judge found as a fact the deceased did not suffer from dementia; the deceased was capable of understanding the nature of the act of making the 2008 Will and its effects; and the 2008 Will was rational) before going into the application of the Banks v Goodfellow criteria.  Given these findings of fact, no proper consideration was given to any presumption of testamentary capacity as the starting point.  The defendant prayed in aid the proposition that for a will that is rational and has been drafted by an experienced independent lawyer who attested its due execution, it should only be set aside on the clearest evidence of lack of mental capacity.  The presumption could also arise from the medical and factual evidence adduced.  The judge has effectively found that the plaintiffs failed to discharge their evidential burden of adducing evidence “sufficiently cogent and probative” to defeat testamentary capacity.  And it is unnecessary for the propounder of the will to “dispel all residual doubts” or to answer doubts “by proof to the point of complete demonstration”, which would in effect be proof beyond reasonable doubt.  The judge should have found that the defendant has discharged his burden to prove testamentary capacity.

12.  Question 1 and the contentions raised concerning this question are case specific.  The guiding principles as to the legal approach are well established (Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §§171 to 173, 176).

13.  As the judge has held, the fact that the plaintiffs have raised the issue of want of testamentary capacity meant that they should bear the evidential burden of adducing evidence sufficiently cogent and probative to raise this issue but the legal or persuasive burden of proving that the deceased had testamentary capacity remains on the defendant[3].  “It is in the nature of an evidential burden that the person discharging that burden does not need to prove anything, but merely to adduce sufficient evidence to require the court to decide the issue in question.” (Nina Kung v Wong Din Shin at §183)

14.  The judge first considered the evidence which supported the case that the deceased was of testamentary capacity[4].  He accepted “there is also some evidence which may support the view that the Deceased lacked testamentary capacity”[5] and went on to consider the evidence in some detail[6].  He concluded that the deceased was not suffering from dementia at the relevant time but even if the deceased was suffering from dementia contrary to his conclusion, he found that the dementia was between “mild” and “moderate”.  The judge is satisfied that the defendant has discharged the burden that the deceased was of testamentary capacity in view of the evidence in support and the evidence of the defendant’s expert Dr Singer[7].

15.  Although the judge has not expressly stated whether the plaintiffs have discharged the evidential burden of raising the issue of want of testamentary capacity, it is apparent from the way he dealt with the evidence that he must have come to the view that the plaintiffs have adduced sufficient evidence to raise this issue.

16.  As for the presumption of testamentary capacity invoked by the defendant (Hawes v Burgess at §§54, 60, 68 and Key v Key at §97), this only means that the objector to a will would bear the evidential burden to put that matter in issue.  The passages in Hawes v Burgess do not lay down any principle of law that “whenever a will is drafted and attested by a solicitor, there is then a raising of the evidential standard required for a finding of lack of testamentary capacity.” (Lee Wai Ho v Fung Kui Chuen, CACV 208/2014, 11 August 2016, at §49; see also Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at §43).

17.  We would decline to grant leave to appeal on Question 1.

Question 2

18.  This question has been set out earlier.  In another part of the notice of motion[8], it is stated that Question 2 has two sub‑issues:

“(1) What is the legal nature of the 3 Criteria? In particular, is each a separate test to be satisfied to find capacity, or are they: (a) inter-linked such that whether one or more are satisfied goes towards assessing the evidence as a whole on testamentary capacity and/or (b) different facets of essentially the same question?

(2) Must the 3 Criteria be dealt with separately, or can they be considered under a single umbrella based on the whole of the evidence?”

19.  It was submitted by the defendant that Question 2 should be answered in the negative.

20.  The defendant contended the legal nature of the three criteria in Banks v Goodfellow should be clarified.  It was not stated in Banks v Goodfellow that the three criteria are legal tests to be satisfied in all cases.  The court there treated the criteria as manifestations of a sound mind without elevating them to separate legal tests.  Regarding the second and third criteria (testator was capable of understanding the extent of the property he was disposing, and able to comprehend and appreciate the claims to which he ought to give effect), they are the standard of capacity to be expected if there is no impairment of the mind so affecting mental faculties.  So the real question is whether there is impaired mental power.  And if a testator does not suffer from mental impairment or illness affecting his mental faculties, it would not be necessary to ask if the second and third criteria are satisfied as capacity is not impaired.

21.  The defendant cited a number of decisions in Hong Kong to support the proposition there are many cases where the court in assessing the evidence as a whole has determined the issue of testamentary capacity under a single umbrella, rather than making express findings on each of the three criteria.

22.  In response to the plaintiffs’ query whether the defendant is challenging the applicability of the Banks v Goodfellow criteria, the defendant’s counsel stated that “the existence of the 3 Criteria are not in issue”, and that Question 2 seeks to “determine their nature, their inter‑relationship, and how they should be considered together”.  The defendant contended that even when legal principles are settled, whether they are applied correctly may raise a point of law of general public importance.

23.  We do not think the Banks v Goodfellow criteria would require clarification.  How the criteria would be regarded as satisfied in a given situation must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.  Whether a determination of testamentary capacity under a single umbrella would suffice or whether there should be separate findings on each of the criteria would depend on the particular circumstances.  In the present case, this court held that the judge has failed to consider and has omitted to find whether the second and third criteria are satisfied, and even if the judge had considered these criteria, there is no or no sufficient evidence for him to find or infer that these criteria are satisfied.  Whether the judge could have considered the criteria together and made a determination on testamentary capacity under a single umbrella or whether he should have made separate findings on each criterion is academic.

24.  We do not think it appropriate to grant leave for Question 2.

Question 3

25.  This question, simply put, is as follows: when there is evidence that the first criterion (the deceased was capable of understanding the nature of the act of making the will and its effects) is satisfied, whether this evidence may support an inference that the second and third criteria are also satisfied.

26.  The defendant contended there is not a sharp dichotomy between the first criterion and the other two, as all three are different facets of a “sound mind, memory and understanding”.  It is of general public importance that the proper legal approach on drawing inferences concerning the three criteria should be clarified, assuming they must be satisfied separately.  The defendant argued that in light of the satisfaction of the first criterion, coupled with a positive finding that the deceased did not suffer from mental impairment through disease or illness, that should be sufficient basis to infer that the deceased had the potential to understand the information in the second and third criteria and it should have been held that the other two criteria are satisfied.

27.  Whether an inference that the second and third criteria are satisfied may properly be drawn from the evidence which supported a finding that the first criterion is met must depend on the particular circumstances of the case.  It does not appear to us this would give rise to a question of great general or public importance.

28.  It would not be appropriate to grant leave for Question 3.

Question 4

29.  This question relates to the guidance given in the preparation of wills in the Checklist in the British Medical Association and Law Society’s Assessment of Mental Capacity and the “golden rule” of Templeman J in Kenward v Adams (1975) the Times, 29 November 1975.  The question would appear to be whether failure to comply with the Checklist and golden rule would affect the validity of a will.  It was contended by the defendant that non‑compliance should not affect in law the validity of a will.  The defendant mentioned in the reply submission this question concerns what steps are necessary for an “experienced lawyer” preparing a will, as a matter of law.

30.  We do not consider this a proper question.  It was not the holding on appeal or in the court below that there is any rule of law to the effect that the Checklist and golden rule must be complied with or particular questions must be asked by the solicitor.  And it does appear that sufficient guidance on the role and responsibilities of a solicitor in preparing a will has been given in many cases over the years.

“Or otherwise” ground

31.  The matters relied on for invoking the “or otherwise” ground are set out in §§43 to 46 of the notice of motion.  In short, it was contended that the case should have been remitted to the trial judge with an invitation to supplement his reasons, that there was evidence upon which inferences could be made that the second and third criteria are satisfied, that the appeal court could have directed questions relating to the second and third criteria to the trial judge given the inquisitorial role of the court in probate proceedings, and that the defendant did not have a fair opportunity to address the argument the second and third criteria are not satisfied.

32.  In accordance with the usual practice of the Court of Appeal, it is for the Appeal Committee to consider if leave to appeal should be granted on the “or otherwise” ground.  We do not find it appropriate to deal with this.

Orders

33.  In the exercise of our discretion, we decline to grant leave to appeal.  Costs of this application should follow the event.  Having considered the plaintiffs’ statement of costs for summary assessment in the total amount of $690,000, we would allow a gross sum of $370,000 as reasonable fees to be paid by the defendant to the plaintiffs.

34.  The costs order and gross sum assessment are in the nature of an order nisi.  Any party may seek to vary the same by applying within 14 days of the handing down of this judgment.