LEE WAI HO v. FUNG KUI CHUEN

CACV 208/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2014

(ON APPEAL FROM HCAP NO. 21 OF 2011)

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REASONS FOR JUDGMENT
AND DECISION ON SUMMARY ASSESSMENT OF COSTS

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Hon Cheung JA:

1.  I agree with the Reasons for Judgment and Decision on Summary Assessment of Costs of Yuen JA.

Hon Yuen JA:

2.  This is the defendant’s appeal from a Judgment of M. Chan J given on 19 August 2014 (“the Judgment”) declaring that the Will dated 10 September 2005 (“the will”) of Madam Lee Yuk Sim (“the Deceased”) was invalid, that consequently the Deceased had died intestate and that the plaintiff Madam Lee Wai Ho, the Deceased’s sister (“the sister”), was entitled to a grant of Letters of Administration of the Deceased’s estate.  It was further adjudged that the counterclaim of the defendant Mr Fung Kui Chuen (“Mr Fung”), the executor and sole beneficiary under the will, be dismissed and that he should pay the sister’s costs. 

3.  At the conclusion of the appeal, we dismissed the appeal with costs.  Subsequently the plaintiff asked for a summary assessment of costs.  The court directed the defendant to provide his comments (if any) on the plaintiff’s bill within 14 days.  None were provided.

4.  My Reasons for Judgment and my Decision on Summary Assessment of Costs appear below.

Background

5.  The Deceased was born in about 1923 in China. In the 1940’s she came to Hong Kong with the sister (who was about 10 years younger than the Deceased).

6.  Subsequently the Deceased had a relationship with a man (“Mr Young”) but they never married.  The Deceased was childless.

7.  In 1960, Mr Young paid for a flat in Wanchai (“the Property”) which was registered in the Deceased’s name¹. At first the Deceased lived in the Property with Mr Young².

8.  Subsequently Mr Young’s family arrived and he no longer stayed at the Property. However he provided financial maintenance to the Deceased until his death in 1990.  

9.  Meanwhile the sister married and had two young children in quick succession.  At one stage the sister and her family stayed in the Property with the Deceased.  The Deceased became the primary care-giver for the elder child³.  After a few years, the sister’s family moved to their own residence, although they maintained a close relationship with the Deceased.

10.  The Deceased let out some rooms in the Property.  In or about 1966 or 1967, the Deceased rented a room in the Property to Mr Fung and his grandmother.  The grandmother later moved out.  Mr Fung continued to stay in the Property. 

11.1.  Meanwhile the sister’s elder son (“Dr Chan”) went to Australia to study where he qualified as a doctor in the late 1980’s.

11.2.  Although Dr Chan was based in Australia, he visited the Deceased regularly whenever he came to Hong Kong.  From 1990 to 1997 he visited Hong Kong once or twice a year, and from 1997 to 2003, he visited 2 - 3 times a year, staying about a month each time.  From 2004 onwards, he visited Hong Kong 4 - 6 times a year, staying from 2 weeks to a month on each visit.  He was therefore able to observe the Deceased’s condition regularly. 

Change in Deceased’s mental capacity

12.  Both Dr Chan and the sister testified that they noticed the Deceased had suffered from impaired mental capacity since 2000.

Forgetting her way home (2000)

13.1.  On one occasion in 2000 (when the Deceased was about 77 years old), she forgot the way home.  She had visited a mall in Tsing Yi with the sister, Dr Chan and his children.  They all took the MTR back and the others got off at Lai King, with the Deceased intending to carry on to Wanchai after changing lines at Central.  The Deceased however was unable to find her way home and was found by Mr Fung at Tung Chung Station, where she had started her journey. 

13.2.  According to the sister, the Deceased said afterwards that her mind had gone blank and she could not remember what she had to do, so she had just remained in her seat in the carriage.

13.3.  Mr Fung at first denied that the Deceased had forgotten her way home, insisting that she was very familiar with travelling on the MTR.  However in cross-examination Mr Fung accepted that this incident did indeed occur. 

Loss of memory at restaurant (2003)

14.1.  According to Dr Chan, whose evidence the judge accepted, one incident in February 2003 made it clear to him that the Deceased was suffering from dementia. 

14.2.  The Deceased, Dr Chan and other family members had gone out for a meal together during which the Deceased ordered some dishes.  That was unusual as she would normally leave it to others to order.  When the food came however, she refused to eat it and denied that she had ordered those dishes.  When reminded that she had ordered them, she got angry and accused Dr Chan of lying. 

14.3.  The Deceased’s behaviour was completely out of character as it was common ground that she was mild and gentle in nature.

MMSE (2004)

15.1.  After that Dr Chan performed an MMSE (Mini Mental State Examination) test on the Deceased from time to time when he visited Hong Kong. 

15.2.  The MMSE is a test designed in the form of a standard questionnaire which is used to assess the degree of a person’s cognitive impairment.  The full score is 30. 

16.1.  Dr Chan recalled that in 2004, the Deceased scored 15-24, which indicated mild to moderate cognitive impairment.  He did not refer the Deceased to doctors in Hong Kong as dementia was irreversible, but he told his parents about the Deceased’s condition.

16.2.  The sister, whose evidence the judge generally accepted, testified she had noticed around 2000 that the Deceased appeared confused, and by 2003-2004, her condition had become serious.  At times she would look expressionless and “stunned”, and at other times, she spoke and behaved roughly, even striking others, in marked difference to her natural mild and gentle nature. 

17.  Eventually⁴ another sister Lee Sai Lui helped look after the Deceased.  When Lee Sai Lui died in 2009, Dr Chan paid for a domestic helper to look after the Deceased. 

Events in 2005

18.  In May 2005, the Deceased was seen by a Hospital Authority doctor for back pain. The doctor’s notes indicated that the Deceased suffered from “overflow incontinence”.

19.1.  A few months later, on 7 September 2005 Dr Chan arrived in Hong Kong.  Soon after he arrived, he paid a visit to the Deceased in the course of which he performed another MMSE test on her.  This was the first time he had used a Chinese version of the questionnaire and he brought it back to Australia for use on his patients.  He was therefore able to produce it at trial. 

19.2.  The score sheet showed that the Deceased was only able to answer 4 questions and had a score of 11.  Dr Chan did not continue to ask the remaining questions, but even if the Deceased had been able to answer them correctly, her total score would still have been only 17, and even at that score, the Deceased would already have been suffering from moderate cognitive impairment.  This was 3 days before the date of the will in question.    

19.3.  Dr Chan prescribed a medication for dementia that was newly available, but it was ineffective as the Deceased’s condition “had gone too far”.

Will

20.  It was against the background of the above facts that the will was prepared and executed. 

21.  In respect of the preparation of the will, the following appears from a witness statement⁵ of Mr Ivan Yeung Ping Kuen, the attesting solicitor (“the attesting solicitor”):

-  in late August or early September 2005, a colleague at the firm where he was then working referred a matter to him, to the effect that he was required to prepare a will; 

-  he then made arrangements to meet the client in the office;

-  however before the meeting was to take place, he received written instructions by fax⁶;

-  he then proceeded to draft a will according to those instructions (without holding the meeting);

-  on 10 September 2005, he “conducted a conference with [Mr Fung] and [the Deceased].  Towards the end of the conference, I interpreted the content of the final draft of the Will to [the Deceased] in Cantonese.  She appeared to thoroughly understand the content of the Will and confirmed that the same was made in accordance with her wishes.  Immediately thereafter, [the Deceased] signed the Will in my presence. Mr Chan Yin Chi⁷, a clerk at the firm, was also present to witness the execution of the Will”.

22.  Under the will, Mr Fung was appointed sole executor and trustee of the will, the Property was given to him absolutely and he was also given the residuary estate. 

Events after the execution of the will

23.  The following month, on 12 October 2005 the Deceased and Mr Fung went to a bank where the former kept a safe deposit box.  They signed an agreement in which they were both named as “customers”, the effect of which was that he was allowed access to her box.  On appeal his counsel placed substantial reliance on this fact, a matter which will be discussed later in this Judgment⁸. 

24.  By 2009/2010, the Deceased was wheelchair-bound. 

25.  In 2010, the Deceased purportedly signed an agreement to sell the Property by making a mark, but the agreement was subsequently cancelled⁹.

26.  On 11 January 2011, the Deceased died. 

Proceedings

- Pleadings

27.1.  In July 2011, the sister commenced proceedings against Mr Fung for (amongst other relief) a declaration that the will was invalid as the Deceased lacked testamentary capacity, alternatively that it was made under Mr Fung’s undue influence. 

27.2.  It was pleaded specifically that the Deceased had suffered from Alzheimer’s dementia since 2000, progressively declining until her death in 2011. 

28.  In his Defence¹⁰, Mr Fung denied this and pleaded that although the Deceased’s health “had deteriorated for some time, the Deceased had never been diagnosed to be suffering from dementia or Alzheimer’s disease”.

- Witness statements

29.  In December 2011, Mr Fung’s solicitors indicated in the time-tabling questionnaire that they would call the attesting solicitor as a witness.

30.  However when in August 2012, the parties exchanged witness statements, there was no witness statement from the attesting solicitor.  Nor was there any indication from Mr Fung’s solicitors that they intended to call the attesting solicitor as a witness, whether by way of subpoena or otherwise.

-  Pre-trial review

31.1.  The pre-trial review took place on 15 October 2013.  Immediately prior to the review hearing, Mr Fung lodged a notice to act in person.  However, before the hearing the sister’s solicitors had written to Mr Fung’s solicitors with a list of proposed directions, to which the latter had indicated no objection.  There was again no indication from Mr Fung’s solicitors that they intended to call the attesting solicitor as a witness, whether by way of subpoena or otherwise. Accordingly no directions were sought from, or given by, the court regarding the issue of a subpoena to, or the provision of a witness statement from, the attesting solicitor.

31.2.  Mr Fung was legally represented again (by the same firm) about a month after the review hearing, and he continued to be so legally represented up to and throughout the trial. 

-  Expert medical evidence

32.1.  The trial was set down for hearing in January 2014.  Prior to that, in November 2013 the learned judge ordered the parties to adduce expert evidence on the disputed issue of the Deceased’s mental capacity, in particular whether she suffered from Alzheimer’s disease or other forms of dementia when she signed the will, and if so, whether she was of sound mind and understanding to appreciate and approve of the dispositions under the will.

32.2.  Pursuant to that order, Dr John Wong Yee Him and Dr Jimmy Dong Yuet Sun were instructed by the sister and Mr Fung respectively to prepare a medical report.  Neither doctor had examined the Deceased during her lifetime.  It was ordered that they should write their reports assuming that the statements of the sister and Dr Chan were true. 

33.1.  The doctors’ reports were exchanged on 13 December 2013.  They then prepared a joint psychiatric report on 27 December 2013. 

33.2.  Dr Wong was of the view that of the 7 major clinical stages of Alzheimer’s dementia¹¹,

-  the incident in 2003 in which the Deceased had forgotten what she had ordered and had then become irritable, as well as the sister’s evidence that the Deceased was dull and confused, indicated that by that time, she was at stage 4, ie “mild Alzheimer’s disease”¹². 

-  the change in the Deceased’s character whereby she became rough and violent indicated stage 5, ie “moderate Alzheimer’s disease”¹³.

-  in 2005, the year the will was made, the Deceased’s incontinence, her inability to perform basic activities of daily life and her score in the MMSE performed by Dr Chan indicated she had reached stage 6, ie “moderately severe Alzheimer’s disease”¹⁴.

-  subsequently the Deceased’s inability to feed herself, her irrational speech and other symptoms in 2007 indicated stage 7, ie “severe Alzheimer’s disease”¹⁵.

33.3.  Dr Dong however was of the view that as the statements of Dr Chan and the sister, as well as Mr Fung, were made more than 1½ years after the Deceased’s death and 7 years after the date of the will, the statements would be inaccurate due to “recall bias”.  Consequently Dr Dong considered that one could not make an accurate diagnosis of dementia based on those statements¹⁶.  

34.  Specifically with reference to the issue of the Deceased’s ability to make a will, Dr Wong said this:

“46. Although we could not assess the Deceased in person and evaluate the above areas¹⁷ in particular, we know that she depicts behaviour and abilities that are seen in Alzheimer’s disease at Reisberg’s Stage 6. We also know that in general, subjects at Reisberg’s Stage 6 would have difficulties in learning new information, recall recently learned facts and would likely be disoriented in date and place. Thus it is like that they would not be able to learn new information, make logical deductions or understand complicated and abstract concepts.

47. In other words, I am of the opinion that, due to the fact that she was exhibiting features of Alzheimer’s disease at Reisberg’s Stage 6, there is a distinct possibility that the Deceased did not have the mental capacity to make a valid will on 10^th September 2005”.

Dr Dong, on the other hand, said this:

“49. ... [E]ven if she did suffer from some form of psychiatric disorder at the time, it still does not render her incompetence in making her will. A person suffering from a psychiatric disorder does not render him or her unfit to make a will. In order to decide if the person is mentally unfit to make a will, the doctor must assess the person. The doctor, apart from establishing if the person is suffering from a psychiatric disorder, also needs to assess his or her understanding of what a will is and its consequences as well as the properties involved in the will. Without such asassessment, the doctor could not hastily make a decision about the person’s testamentary capacity and his or her capacity to make a will.

50.  Obviously, this assessment is no longer possible in this case.  Therefore, I would consider the best person, even though he was not a psychiatrist, to make this decision at the time would be [the attesting solicitor] who stated that the will was ‘INTERPRETED to the abovenamed Testatrix in the Cantonese dialect of the Chinese language by the undersigned when the Testatrix appeared to thoroughly understand this Will and declared that the same was made in accordance with her wishes:-’.”

-  Application to adduce evidence of the attesting solicitor

35.  At this juncture it is necessary to refer in some detail to the application on behalf of Mr Fung to adduce the evidence of the attesting solicitor at trial, as it is the foundation of his main submission on appeal. 

36.  By way of background, the attesting solicitor said the following in his witness statement¹⁸:

-  in 2011 and/or 2012, he received several letters from the sister’s solicitors, from which he understood that he might be subpoenaed to give evidence at the trial of the action;

-  he was also contacted by Mr Fung (in April 2013¹⁹) about preparing a witness statement for the case.  He told Mr Fung that he would not prepare a witness statement since he was a neutral independent witness.  He told Mr Fung that “any party could subpoena me to testify”;

-  finally in mid-December 2013, he received a subpoena²⁰ requiring him to attend court to give evidence.

37.1.  On 7 January 2014 (Day 1 of the trial), the court was informed that subpoenas had been issued to two witnesses: (1) the Hospital Authority doctor who had recorded in her notes that the Deceased was incontinent in 2005²¹ and (2) the attesting solicitor. 

37.2.  The plaintiff’s counsel objected to the introduction of this late evidence, emphasizing that it was only on Friday, one working day before the start of trial, that his side was informed that a subpoena had been issued to the attesting solicitor.

37.3.  The judge was concerned that there was no witness statement from the attesting solicitor.  Consequently the plaintiff’s side would not be aware of the line of evidence that he would be giving.  After indicating that the plaintiff’s legal team would be entitled to apply to set aside the subpoena if it would be disruptive to trial or if they would be surprised, her ladyship declined to give leave immediately.

37.4.  At the end of Day 2, Mr Fung’s counsel proffered affirmations from Mr Fung and his solicitor²² seeking to explain the delay in issuing the subpoena to the attesting solicitor.

37.5.  The judge asked if Mr Fung’s side was able to provide the plaintiff’s side with at least a draft witness statement, so that the latter would have less ground for objection, and so that the court could consider its relevance²³.  

37.6.  It was in these circumstances that it was only in the afternoon of Day 3 that the attesting solicitor’s witness statement was provided to the plaintiff’s team and to the court. 

37.7.  The judge expressed surprise that the statement was so vague, eg the attesting solicitor did not say what made him think the Deceased understood what was said to her²⁴.  According to Mr Fung’s counsel, that was because the attesting solicitor was not in possession of the file, which would be brought to court by his former firm. 

37.8.  Unsurprisingly, the judge enquired why the file had not been retrieved earlier during the preparation of the case for trial.  The only explanation proffered on Mr Fung’s behalf was that at one stage in the course of proceedings, he was not legally represented²⁵.

37.9.  The judge considered the submissions from the sister’s counsel on the unexplained delay between December 2011 (when Mr Fung’s solicitors stated in the time-tabling questionnaire that they intended to call the attesting solicitor) and April 2013 (when Mr Fung said he began to locate him).  There was also a delay of 4 months from that date to August 2013 (when Mr Fung contacted the attesting solicitor and was told he would not give a witness statement but would testify on subpoena).  The subpoena was not applied for until mid-December 2013.

37.10. Contrary to the submissions made on behalf of Mr Fung that the attesting solicitor’s evidence would be straightforward, the sister’s counsel submitted that the evidence may expand from due execution to testamentary capacity and into the issue of knowledge and approval.  The issues would be complicated and the trial would be disrupted.

37.11. It was in light of those circumstances and submissions that the judge held²⁶:

“It seems from the evidence and from the submissions that Mr Fung made a deliberate decision not to call Mr Yeung until the eve of trial. I have seen no good reason advanced as for this delay and I refuse the application”.

38.  Apart from the sister, Dr Chan and Mr Fung who gave factual evidence, Dr Wong and Dr Dong also gave expert evidence.

Judgment

39.1.  The judgment was, with respect, admirably comprehensive.  In respect of the Deceased’s testamentary capacity, the judge applied the 3-limb test established in Banks v Goodfellow (1870) LR 5 QB 549 to determine if the Deceased understood:

(a)  the nature of a will and its effect; 

(b)  the extent of the property being disposed of under the will;

(c)  the claims (eg of family or friends) to which she ought to give effect²⁷.

39.2.  As for the factual evidence, the judge accepted the sister and Dr Chan as honest witnesses who had given true accounts of their observations of the Deceased’s condition and how she had conducted herself from 2000 until her death in 2011²⁸.  The judge described Mr Fung’s evidence as being unsatisfactory in many respects²⁹. 

39.3.  As for the expert evidence, her ladyship considered Dr Wong’s expert evidence in considerable detail³⁰ and expressed regret that Dr Dong’s evidence (in which, put simply, he declined to proffer an opinion) was unhelpful and unnecessary³¹.

39.4.  As for the attesting solicitor, the judge said this:

“88.  ...The solicitor did not explain how Yuk Sim “appeared” to him to thoroughly understand the Will, and how she declared the Will to be in accordance with her wishes.  In normal circumstances, the attesting solicitor attests to the testator’s act of execution or signing of the Will.  Only a medical doctor who had examined the testator would have been in a position to give evidence on the mental condition of the testator and his/her understanding.  There is no evidence of the solicitor having medical qualifications, or that he had in any way satisfied himself as to the mental condition of Yuk Sim just before she signed the Will in 2005.

89.  From the available evidence of Dr Wong, a patient suffering from mild cognitive impairment only has subtle deficits which may not be noticeable by persons who are even closely associated with the patient.  Even if the solicitor who had attested Yuk Sim’s signing of the Will on 10 September 2005 had been called to give evidence, I have grave doubts that such evidence would have been reliable, or could have assisted the Court in deciding whether Yuk Sim did indeed understand the contents and effect of the Will, what her wishes were, and whether the Will was indeed in accordance with her wishes.

90.  In fact, the attesting solicitor never made any witness statement for use in these proceedings, and it was only at the commencement of trial that those representing Fung indicated that Fung intended to subpoena the attesting solicitor to give evidence.  I refused leave on the basis that there had been undue and unexplained delay on Fung’s part in seeking to adduce evidence from the attesting solicitor, when the issue of Yuk Sim’s testamentary capacity had been identified at the earliest stage from the filing of the pleadings, and that the trial would obviously be disrupted with prejudice to Wai Ho, if the attesting solicitor should be permitted to give evidence at such late notice.”

39.5.  Having considered the evidence before her, and recognizing that the conditions of Alzheimer’s disease are developmental³², the judge traced the Deceased’s cognitive impairment through the 10 year span starting from 2000 to 2010³³.  The will was made in 2005 when, as the judge found, the Deceased displayed symptoms consistent with mild to moderate dementia.  Indeed the 2005 MMSE score suggested that she had deteriorated to the stage of moderate dementia³⁴.

39.6.  The judge noted that an Alzheimer’s disease patient’s cognitive abilities and memory fluctuate, even within the day.  She was mindful that the burden was on Mr Fung to prove, on the balance of probabilities, that the Deceased had the requisite mental capacity when she signed the will.  She held (para. 100):

“On the available evidence, and with assistance from Dr Wong’s analysis, I come to the inevitable conclusion that it is more probable than not that when the Will was signed in 2005, [the Deceased] was suffering from at least moderate, if not moderately severe, Alzheimer’s disease. Based on the description of the disease and Dr Wong’s analysis ..., I am not satisfied that it is more probable than not that, at that relevant time, [the Deceased] was able to understand and recall the extent of the assets or the value of the Property she held, that her memory was sufficiently sound to recall the component and [identities] of her family members as her possible beneficiaries, and any interests or claims which they may have, by virtue of their blood ties or relationship, to her property. ... I am not satisfied, on a balance of probabilities, that at the time when [the Deceased] signed the Will and when it was allegedly explained to her, she was able to understand the nature of her act of signing the Will and its legal consequences. Even if the attesting solicitor had explained the Will, and its contents and meaning to [the Deceased] in 2005, I am not satisfied on the expert medical evidence that she was able to retain and truly understand the information imparted to her. Any nods, repetition of the words spoken, or other form of acknowledgment may not represent true understanding by a person suffering from dementia”. (Emphasis added).

39.7.  On that “key issue”³⁵ of testamentary capacity, the judge found against Mr Fung.  It followed that her ladyship was not satisfied that the Deceased had knowledge and understanding of the contents and effect of the will³⁶.  It was not necessary to rely on the rationality or irrationality of the dispositions thereunder³⁷.

39.8.  The judge accordingly gave judgment declaring the will invalid and dismissed Mr Fung’s counterclaim with costs.  Mr Fung appealed.

Discussion

40.  On appeal, Mr Vincent Chen (who did not appear below) submitted on behalf of Mr Fung that as the will had been drafted and explained and attested by a solicitor, it was a legal principle that the court would declare that a testator did not have testamentary capacity only if there was the clearest evidence of lack of mental capacity, and the judge erred in failing to consider that principle.

41.  Mr Chen sought to rely on Hawes v Burgess [2013] EWCA Civ 74, a decision of the English Court of Appeal. 

42.  In that case, the testator had made a will 11 years earlier dividing her estate equally among her three children, a son and two daughters.  However by her later will, she gave only some personal items to the son by way of specific legacies, and divided the bulk of her estate equally between the daughters. 

43.1.  The later will was contested on the grounds of (1) lack of testamentary capacity and (2) lack of knowledge and approval. 

43.2.  In respect of (1), the trial judge considered the 3-limb test in Banks v Goodfellow³⁸. She found that the 1^st and 2^nd limbs were satisfied, ie the deceased was able to understand sufficiently the general nature and consequences of making the later will, and also the extent of her estate. However, for the 3^rd limb, she found that the deceased did not understand her son’s claim to her estate: para.8. 

43.3.  In respect of (2), the trial judge concluded that the deceased did not know and approve the contents of the later will: para. 9.  

44.  The judge declared the will invalid.

45.  On appeal, the English court of appeal upheld the judgment on the basis of (2) lack of knowledge and approval, but expressed reservations in respect of the judge’s conclusion on (1) the lack of testamentary capacity.

46.  The passages that Mr Chen relied on before this court are in respect of (1) and should be understood in the context of the appellate court’s expressed reservations in the quoted case.  The trial judge had found that the 1^st and 2^nd limbs were satisfied, ie the deceased was able to understand sufficiently the general nature and consequences of making the later will, and also the extent of her estate.  The judge only concluded that the deceased lacked testamentary capacity because she was not satisfied on the 3^rd limb, ie the deceased’s understanding of the claim of her son³⁹.  Mummery LJ confessed to entertaining doubts about that last finding: para. 60.

47.  It was in that context that Mummery LJ said the following, which was relied upon by Mr Chen:

“13. In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed. ”

“54. [Counsel for the respondents’] overall submission was that the judge’s finding that the Deceased lacked the requisite capacity to make the 2007 Will was amply justified on the evidence, in particular on the expert opinion of Professor Jacoby. The key question is whether the judge’s findings are sufficient to overcome the strong prima facie case for the validity of a will drafted by an independent solicitor who oversaw its execution and justify the judge’s conclusion that the Deceased lacked testamentary capacity in a case in which the judge found that she knew she was making a will and appreciated the extent of her property”.

48.  It is clear that Mummery LJ was explaining his difficulty in accepting the judge’s finding on the 3^rd limb in light of the evidence of the experienced attesting solicitor, which was that he had attended twice on the deceased, in December 2006 when she gave instructions, and in January 2007 when she executed the will.  He had made contemporaneous attendance notes, in which he described her as “entirely compos mentis”, he had no hesitation in taking instructions from her based on her instructions and conduct, and that if there had been any uncertainty, he would have made enquiries for obtaining medical evidence: para. 37.  However since the appellate court upheld the trial judge’s conclusion on (2) lack of knowledge and approval, Mummery LJ said it was unnecessary for him to express a concluded view on (1): para. 61.  The other members of the court were of the same view. 

49.  In my view, these passages 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 mental capacity.  A solicitor’s evidence of his interaction(s) with the deceased would of course be an important fact to be considered by the court when applying the 3-limb test, but the judge must determine the issue of testamentary capacity in the light of all the evidence in each case, and it is for the judge to accord such weight as he or she considers appropriate to each relevant piece of evidence.  I do not therefore consider that there was any error of law on the part of the judge as suggested by the appellant’s counsel⁴⁰.  

50.  Indeed the present case illustrates the risk of adopting the submission that a higher standard of proof of lack of mental capacity is required in all cases if the will had been prepared and attested by a solicitor.  The witness statement of the attesting solicitor in the present case provided scant evidence of the facts on which he based his statement that the Deceased “appeared to throughly understand the Will”: 

-  he did not know the Deceased previously and therefore had no knowledge of her pre-existing physical and mental condition;

-  he only received written instructions by fax and prepared a draft will accordingly, apparently without any prior discussion with the Deceased regarding the contents of the fax, and other relevant matters eg the extent of her estate, and whether she had any relatives whom she might have been expected to benefit (the 2^nd and 3^rd limbs of Banks v Goodfellow);

-  he did not disclose where the conference with the Deceased on 10 September 2005 took place, whether the Deceased spoke during the conference (and if so, whether it was without prompting) and what he did (if anything) to satisfy himself of the Deceased’s mental capacity;

-  he did not disclose whether, prior to explaining the will to her, he discussed with her the abovementioned matters relating to the 2^nd and 3rd limbs of Banks v Goodfellow.

51.  Incidentally there are in the appeal bundle various letters from Mr Fung’s solicitors to the attesting solicitor (the earliest of which was dated 18 March 2016⁴¹) asking for details along the above lines.  There was no reply.

52.  This leads me to the ground of appeal based on the judge’s refusal to give leave to call the attesting solicitor at the trial.  Mr Chen submitted that this was on the basis of delay alone, and referred the court to the following passage in Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89:

“27. The second caveat we have is about the comment of Poon J at [6] of his judgment on the possibility of an application being dismissed on the basis of delay alone. Whilst we would not rule out this possibility entirely, one must always bear in mind O.1A r.2(2). As with the exercise of other kinds of discretion, the exercise of case management power must be with reference to the facts and circumstances of the case before the court. There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation. The court must conduct an overall balancing exercise.”

53.  I do not agree that the judge refused leave on the ground of delay alone.  As can be seen from her discussions with counsel⁴², the substance of the attesting solicitor’s evidence was uppermost in her ladyship’s mind.  However the witness statement that was eventually proffered turned out to be completely lacking in relevant detail.  The inevitable consequence was that if the witness was called to give oral evidence, he would no doubt have been asked to elaborate on his statement, and that would be the first time that the other side was given any idea of the relevant details of his evidence.  As the judge remarked, this was not the kind of preparation that was acceptable even before the Civil Justice Reform⁴³.    

54.  Given the plaintiff’s clear assertion of the Deceased’s mental condition in the Statement of Claim filed some 2½ years before trial, Mr Fung’s side should have contacted the attesting solicitor immediately, and in light of his stand⁴⁴, an application should have been made to court well in advance of trial (at the latest, immediately after August 2013 when contact was made) for a subpoena to be issued, at which stage the court could have given directions for him to provide a full witness statement, after obtaining the file from his former firm⁴⁵ and reminding himself of the details.  If, despite reference to the file, the statement was still incomplete, the court could have followed up with directions for both parties to provide specific questions for him to address in a supplemental witness statement.  Had that been done, the parties could have prepared their cases accordingly, including asking the medical experts to comment on the Deceased’s behaviour as disclosed by the attesting solicitor.

55.  As it was however, the witness statement presented to the judge can only be described as “sketchy”⁴⁶. Given the unexplained delay as well as the unsatisfactory state of the witness statement which would have led to a disruption of the trial, it was within the proper exercise of a trial judge’s discretion in case management to refuse leave.

56.  Lastly it was submitted on behalf of Mr Fung that the judge failed to consider or properly consider the evidence that he was allowed access to the Deceased’s safe deposit box about one month after the execution of the will.  For this purpose, the Deceased signed a pro forma agreement of the bank. 

57.  With respect, there is nothing in this submission.  It is clear that the judge was aware of this piece of evidence as she referred to it in the Judgment⁴⁷.  Further the judge was entitled to give it no weight in the absence of evidence from the bank staff as to what (if anything) they had done to ascertain the Deceased’s mental capacity when she signed the agreement, what (if anything) she had said and what they had observed of her at that visit.

Order  

58.  For the reasons set out above, I dismissed the appeal with costs. 

Summary Assessment of Costs

59.  Subsequently the sister’s solicitors applied for a summary assessment of costs⁴⁸.  An order to that effect was made by a single judge of this court⁴⁹.  Directions were subsequently given for a Chinese translation of the bill to be provided to Mr Fung⁵⁰ and for him to provide his comments (if any).  None were provided.

60.  Having considered the bill, I would assess costs at $130,000.

Hon Kwan JA:

61.  I agree with the Reasons for Judgment and Decision on Summary Assessment of Costs of Yuen JA.