LAU KIN WING KEN AND ANOTHER v. DENG YUJIAO One of the Proving Executors of the Estate of Lau Heung, Deceased AND ANOTHER

CACV 49/2018

[2019] HKCA 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 49 OF 2018

(ON APPEAL FROM HCAP 21/2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 29 January 2018, Chow J (“the Judge”) pronounced in solemn form for the force and validity of a will executed by the late Lau Heung (“the Deceased”) on 8 November 2011 (“the Will”).

2.  The Deceased passed away on 15 September 2012. He had three families during his lifetime.  Out of his first marriage with Madam Ng Kam Choi, he had 8 children born between 1949 and 1962 (one of them died before the demise of the Deceased).  The 2^nd Defendant was one of the 7 surviving children from this family.

3.  Out of his relationship with Madam Lai Lai Siu[1], the Deceased had 5 children (born between 1954 and 1962).  The 1^st and 2^nd Plaintiffs came from this family.  With the exception of Kin Wing, the 1^st Plaintiff, the other children of this family had emigrated to Canada and the United States.  Madam Lai had also emigrated to Canada[2].

4.  The Deceased co-habited with Madam Deng Yu Jiao since about 1989.  She is the 1^st Defendant.  She gave birth to two children of the Deceased.

5.  The 1^st and 2^nd Defendants were appointed by the Deceased to be the co-executors of his estate and trustees under the Will.  The Will was prepared and executed before a solicitor (“Mr Tang”) and a clerk of the solicitor firm.  Immediately prior to the execution, the Deceased was examined by a medical doctor (“Dr Hsu”) who certified that the Deceased “was fully conscious, mentally alert and sound and able to make decisions.”  Dr Hsu further noted that the Deceased “could tell his name, age, address and was well oriented as to time and place.”

6.  The Judge summarized the terms and the effects of the Will at [43] and [44] of the judgment of 29 January 2018:

“ 43. Under the November 2011 Will, the Deceased:-

(1)   appointed Madam Deng and Chi Lam as executors and trustees of the will;

(2)   gave all his money in bank accounts, cash, shares and personal belongings to Madam Deng to provide for the living expenses of Madam Deng and her children;

(3)   gave the income arising from Shops A and B[3] to Madam Deng for no less than 24 months;

(4)   divided the sale proceeds of Shops A and B into 12 equal shares and gave them to the following persons in the following proportions –

(a)    Chi Choi: 1/12;

(b)   Chi Sum: 1/12;

(c)    Yin Ling: 1/12;

(d)   Chi Lam: 3/12;

(e)    Chi Kin: 1/12;

(f)    Yin Yuk: 1/12;

(g)   Madam Deng: 3/12; and

(h)   Kin Wing: 1/12.

44. In summary, under the November Will:-

(1)   all the surviving members of the 1^st Family, with the exception of Chi Sing, were named as beneficiaries of the Estate of the Deceased;

(2)   amongst the surviving members of the 1^st Family, Chi Lam got the largest share of the sale proceeds of Shops A and B;

(3)   in respect of the 2^nd Family, only Kin Wing was named as a beneficiary of the Estate of the Deceased; and

(4)   Madam Deng, of the 3^rd Family, was also named as a beneficiary of the Estate of the Deceased.”

7.  Earlier in 2011, the Deceased had executed another will on 16 July 2011 (“the July Will”). The July Will was executed before another solicitor at a restaurant.  There was no medical examination before its execution.  The terms of the July Will are similar to those in the Will except that there was a direction that Shops A and B were not to be sold for at least 3 years and the Deceased’s ½ share in the property at Flat B, 32/F, Tower 6, South Horizons (“the South Horizons Property”) would be given to another son in the first family Chi Sing.  It was also stated in the July Will that for the sale proceeds of Shops A and B: 3 shares were to be given to Madam Deng but 2 of those 3 shares were to be held on trust for her 2 children; and 3 shares were to be given to Chi Lam, 1 of which was to be held on trust for his daughter and another 1 share was to reward him for $2 million he gave to the Deceased.

8.  On 29 August 2011, the Deceased assigned his ½ share interest in the South Horizons Property to Chi Sing.  Thus, there was no further reference to the same in the Will.

9.  Another change in the Will was the bequest of income of Shops A and B to Madam Deng for 24 months.

10.  After the Deceased’s demise, the Defendants obtained a grant of probate in respect of the Will on 22 March 2013. 

11.  On 16 October 2013, the Plaintiffs commenced action to seek a revocation of that grant on the ground that the Will was executed by the Deceased without the requisite testamentary capacity, or knowledge and approval of its contents. 

12.  After trial, the Judge pronounced in favour of the Will in solemn form and dismissed the Plaintiffs’ claim. 

13.  The Plaintiffs appealed against the judgment. After hearing submissions of counsel in the appeal, we reserved our judgment. We now give our judgment in the appeal.

The approach adopted below and the appellate approach

14.  Before we address the grounds of appeal, we wish to highlight the approach of the Judge in assessing testamentary capacity as set out at [68] of the judgment,

“ 68. In a recent judgment given in Choi Po Chun v Au Wing Lun, HCA 7/2010[4] (4 July 2017), at paragraphs 44 to 47, I set out various principles for determining whether a testator had testamentary capacity to make a will.  In particular, the following principles were stated:-

(1)   The four criteria for testamentary capacity in the classic statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 have been endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013), at paragraph 52, and are well established –

‘ It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the 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.’

(2)   The question of whether a testator had testamentary capacity should be treated as a ‘practical question’ which does not depend solely on scientific or legal definition, and is a question of degree to be solved on the facts and circumstances of each case.  The criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for commonsense judicial judgment on the basis of the whole of the evidence (see Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen, and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197).

(3)   The fact that a person was suffering from dementia, or had partial unsoundness of mind, does not necessarily mean that he did not have testamentary capacity to make a will (see Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), at paragraph 133 per Poon J (as he then was); Chan Chun Pui and Pang Woon Kam v Feng Cuixian, HCAP 13/2007 (24 July 2009), at paragraphs 121-124 and 146 per Recorder A Ho SC.)

(4)   The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity.  So also is the fact that a will is prepared by an independent and experienced solicitor, is executed by the testator after the solicitor has read through and explained its provisions to the testator, and the solicitor is satisfied that the testator is capable of understanding, and understands, the will (see Banks v Goodfellow, supra, at 558 and 565-566; Hoff v Atherton [2004] EWCA Civ 1554, at paragraph 44 per Peter Gibson LJ).

(5) The following words of caution stated by Mummery LJ in Burgess v Hawes [2013] EWCA Civ 74 are, I consider, worth repeating in this judgment:-

‘ 57 That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

…

60  My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer.  If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity.  The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.’  ”

15.  There was an appeal inChoy Po Chun v Au Wing Lun, HCAP 7/2010 and the Court of Appeal gave its judgment in Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 on 20 April 2018, more than 2 months after the handing down of the judgment by the Judge in the present case.  Notwithstanding the Court of Appeal did not accept counsel’s submissions on the Judge’s assessment of the evidence, it reversed the judgment of the Judge because the Judge did not consider the second and third criteria in Banks v Goodfellow and there was no evidence in that case from which the satisfaction of those criteria could be inferred. 

16.  On the weight to be attached to the fact that a will was attested by solicitor and the observations of Mummery LJ, Kwan JA (as she then was) had this to say at [59]:

“ 59. But as noted in Theobald on Wills (18th ed.) at para.3-012, the value of the view of a busy solicitor, lacking in medical training, should not be overstated. Whilst the wisdom of the comments in Hawes v Burgess is accepted, as Christopher Pymont QC stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43], those comments ‘do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless.’ ”

17.  In that case, the attesting solicitor failed to conduct proper enquiry which the court expects when a will is prepared for an elderly person who was in poor health, see the judgment of Cheung JA at [2.3] to [3] and the judgment of Kwan JA at [56] to [57] and [60].  The Court was therefore unable to infer from the fact that the will was prepared and attested by a solicitor that all the criteria in Banks v Goodfellow had been satisfied though there was no difficulty regarding the first criterion[5]. 

18.  Subsequently, in Re Estate of Wong Yin Sheung [2019] HKCA 452, Kwan VP made it clear that much depends on the facts and evidence in a case and Re Estate of Au Kong Tim (Wills: Validity), supra, did not rigidly prescribe that a party propounding a will would not be able to establish testamentary capacity if a solicitor failed to make proper enquiry and follow the golden rule in Kenward v Adams (1975) The Times, 29 Nov 1975 as a matter of good practice.  In that case, notwithstanding the failings on the part of the attesting solicitor, the Court of Appeal found on the facts in the case there was sufficient evidential basis for inferring that all the criteria in Banks v Goodfellow had been satisfied.  The matters that Kwan VP took account were set out at [37] of the judgment and the whole factual circumstances including evidence from family members on the mental condition of the testatrix were regarded as relevant.

19.  This holistic assessment was in line with the Judge’s proposition (2) at [68] of the judgment below.  We respectfully agree that the question of testamentary capacity is a practical question and the court has to assess it by reference to the whole of the evidence (not confining itself to the medical evidence) and apply judicial common sense in the exercise.  

20.  We also respectfully agree with Kwan JA in Re Estate of Au Kong Tim (Wills: Validity), supra, at [52] on the appellate approach in an appeal against the finding of testamentary capacity:

“ 52. The approach of Mr Hingorani is inappropriate to mount a proper challenge to a finding of fact made by the trial judge. The task of the appeal court is not to evaluate the evidence afresh, as this cannot be done by reading selectively parts of the transcript. The appellate process is not designed to give the appellant a platform to repeat submissions on the evidence that had been made in the court below, in the hope that the appeal court may be persuaded to come to a different view. For the appeal court to interfere with a finding of fact, it must be shown that there is error in the trial judge's evaluation of the evidence that is sufficiently material to undermine his conclusion. In the assessment of expert evidence, there are clearly areas in which judges can reasonably come to different conclusions. And what weight is to be attached to a particular piece of evidence is a matter for the trial judge…”

The findings by the Judge

21.  The Plaintiffs challenged the Will (and also the July Will) on the bases of lack of testamentary capacity and knowledge and approval.  The Judge recited his factual findings on the circumstances leading to the execution of the July Will and the Will at [22] to [45] of the judgment.  Then he alluded to the dispute between the parties on a meeting between the Deceased and the two plaintiffs and another child from the second family in November 2011 at Shenzhen.  At [47], the Judge explained his acceptance of the evidence of the defence in that regard.

22.  The Judge referred to the medical records of the Deceased at [56] to [62] of the judgment.  In light of the submissions advanced before us, we would highlight the following:

(a)   The Judge noted that Dr Tang of the Kowloon Hospital formed the impression that the Deceased was suffering from subclinical delirium (on 26 November 2010) and dementia superimposed by delirium (3 December 2010) when a family member asked to have the Deceased assessed for fitness to sign a will.  Dr Tang opined that the Deceased was not fit to sign a will at that time;

(b)   The Judge also noted the results of Mini-Mental State Examination [“MMSE”] conducted on the Deceased between 24 November 2010 and 13 April 2012 and set out the same in the following table at [61]:

Date	Place where MMSE was carried out	MMSE Score
24.11.2010	Kowloon Hospital	16/30
30.11.2010	QEH	11/30
14.02.2011	QEH	13/30
11.07.2011	QEH	14/30
16.07.2011	July Will
08.11.2011	November Will
05.04.2012	QEH	11/30
13.04.2012	Kowloon Hospital	20/30

(c) The Judge said the following in respect of the MMSE results at [62]:

“ 62. It is not in dispute that MMSE is only a screening test for cognitive function, and not a diagnostic test for dementia.  If the patient reaches the cut-off score, he/she is “screened out”.  In such a case, generally, no further investigation would be carried out or required, and the patient would not be considered as demented.  However, if the patient scores below the passing mark, he/she is regarded as mentally impaired and further investigation would, or may, be carried out in order to determine the cause of the mental impairment. In relation to the Deceased, having regard to his education level, the cut-off score was 20.  In other words, he failed the first 5 MMSEs, but passed the last one.”

23.  The Judge took account of the matters set out at [70] to [79] in coming to the finding that the Deceased had testamentary capacity when he executed the Will:

“ 70.  `First, the Deceased had a detailed conversation with Mr Lai in March 2011 in the course of which a wide range of topics relating to the making of a will were discussed.  According to Mr Lai, whose evidence I accept, the Deceased spoke logically and relevantly, and was able to hold a discussion with him with proper and sensible follow-up questions and inquiries.  The evidence of Mr Lai supports the view that the Deceased had a clear mind, understood the nature and effect of a will, and was aware of the persons or classes of persons whom he ought to consider when deciding on the dispositions in his will.

71. Second, the dispositions in the November Will are rational.  I consider that the Deceased could rationally decide to:-

(1)   “disinherit” the members of the 2^nd Family (with the exception of Kin Wing) who had all emigrated from Hong Kong and had not taken care of the Deceased for many years;

(2)   distinguish Kin Wing from the rest of the 2^nd Family in view of the fact he remained in Hong Kong and, it is not in dispute, visited and took care of the Deceased; and

(3)   give 1 share of the proceeds of sale of Shops A and B to Chi Lam’s daughter (Paeonia), and 1 extra share to Chi Lam, for the reasons given by Chi Lam, whose evidence on these matters I accept to be truthful.

72. Third, immediately prior to the execution of the November Will, Dr Hsu found, after examining the Deceased, that he “was fully conscious, mentally alert and sound and able to make decisions”, and noted or observed that the Deceased “could tell his name, age, address and was well oriented as to time and place”.

73. Fourth, at the meeting with Mr Tang in the office of PWKL for the execution of the November Will, Mr Tang found the Deceased to be alert, in a very good mood and coherent in telling him about his children and family.  Also, the Deceased either nodded or said he understood when the nature and effect of the will was being explained to him.  Mr Tang had no doubt that the Deceased understood the legal effect of his conduct on that day and the signing of the November Will.

74. Fifth, after the execution of the November Will, the Deceased instructed Chi Lam to write out his reasons for “disinheriting” the members of the 2^nd Family with the exception of Kin Wing, and signed the November Explanatory Note to confirm the same.  The reasons given by the Deceased in the November Explanatory Note seem to me to be rational ones.

75. Sixth, during the period from the end of 2010 to his demise in September 2012, the Deceased executed many legal documents (including a number of conveyances, a tenancy agreement, a deed of severance, two statutory declarations and a power of attorney) at different law firms.  Apparently, none of the handling solicitors or clerks considered the Deceased to lack mental capacity to enter into the relevant transactions.  Although the mental capacity required to make a will may be higher than that required for the other transactions (see Boughton v Knight (1873) LR 3 P&D 64, at 71-72; Re Beaney [1978] 1 WLR 770, at 774E-F), the fact that no one apparently questioned the Deceased’s mental capacity to enter into those transactions is still relevant to the question of whether he had the requisite testamentary capacity to make the November Will.

76. Seventh, according to Madam Deng, who had been living with the Deceased for over 20 years prior to this death and whose evidence I accept, the Deceased had a clear and normal mind during the long period of their co-habitation, and he fully understood his decisions at the time of the making of the November Will.  Madam Deng came to the latter view as a result of, inter alia, (i) the Deceased’s expression of worry that the members of the 2^nd Family might not be satisfied with his dispositions in the November Will, and (ii) the Deceased’s understanding of the need for the medical examination by Dr Hsu, namely, to prove his mental capacity for making a will (see paragraphs 10 and 11 of Madam Deng’s 1^st witness statement).

77. Lastly, I take into account the contents of the November Will, which seems to me to be relatively straight forward, consisting of only 2 pages with 6 simple clauses.

78. The principal matter relied upon by the Plaintiffs to show lack of testamentary capacity on the part of the Deceased is based on the allegation that he could not recognise Lai Har and Lai Wah as his daughters at the meeting in Shenzhen in November 2011.  However, as earlier mentioned, I reject Kin Wing and Lai Har’s evidence that the Deceased could not recognise Lai Har and Lai Wah in the hotel room and the restaurant, and accept Madam Deng and Chi Lam’s evidence to the contrary.

79. Mr Miu also relies upon the so-called “Golden Rule” referred to by Templeman J (as he then was) in Kenward v Adams (1975) The Times 29 November 1975, namely, that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.  The Deceased was examined by a medical practitioner (Dr Hsu) prior to the execution of the November Will, although it is right to note that Dr Hsu was not a psychiatrist.  It does not appear that there was any discussion between Mr Tang and the Deceased regarding the earlier will (ie, the July Will), or the proposed alterations to be made by the November Will.  These are matters which I should bear in mind when considering the question of whether the Deceased had testamentary capacity to make the November Will, and also the question of whether he knew and approved the contents thereof when he executed it on 8 November 2011.”

24.  At the trial, expert evidence was adduced in respect of the mental capacity of the Deceased.  After summarizing the evidence of Professor Mak (the expert called by the Plaintiffs) and Dr Chen (the expert called by the Defendants), the Judge concluded at [84] and [85]:

“ 84. I prefer the evidence of Dr Chen to that of Professor Mak.  One major difficulty that I have with Professor Mak’s opinion that the Deceased was suffering from dementia is that she has not been able to give any satisfactory explanation for the Deceased’s substantially improved MMSE score on 13 April 2012 when compared to the earlier MMSE scores, it being common ground that a person suffering from dementia would show progressively deteriorating mental functions.  As remarked by Professor Mak in her report dated 16 March 2016 (at paragraph 9.11), “Once he suffered from dementia there was no going back to clear thinking and normal mental functions because the effects of dementia are irreversible and the course is downhill”.  Mr Miu was driven to argue that one should ignore the last MMSE score because it was an exceptional result standing out from the rest.  However, there is nothing to suggest that the last MMSE was conducted improperly or incompetently, or the results were wrongly recorded, or the Deceased achieved the passing score of 20/30 by chance or luck.  I do not consider that one can simply brush aside the MMSE score achieved by the Deceased on 13 April 2012.  I also consider Dr Chen’s other reasoning for coming to the conclusion that the Deceased was not suffering from dementia (as summarised in paragraph 82 above) to be convincing.

85. In all, I find, on the balance of probabilities, that the Deceased was not suffering from dementia at the time of execution of the November Will.”

25.  The Judge further reiterated that the issue before the court was testamentary capacity rather than dementia.  Absent dementia, there was no other basis for saying that the Deceased lacked testamentary capacity.  On the other hand, even if the Deceased was suffering from dementia, it did not follow that he had no testamentary capacity.  At [88] of the judgment, the Judge said even assuming the Deceased suffered from dementia he was satisfied that by reason of the matters in [70] to [79] of the judgment the Defendants had discharged the burden in showing that the Deceased had testamentary capacity when the Will was executed.

26.  On knowledge and approval, the Judge assumed that the second rule in Barry v Butlin[6] applied and assessed the evidence whether the Defendants established that the Deceased knew and approved the contents of the Will.   He also approached the issue on the basis that the court ought to be vigilant and jealous in examining the evidence, see [90] of the judgment. 

27.  At [92], the Judge acknowledged the shortcomings of the solicitor in attesting the execution of the Will by the Deceased. Despite that, he was satisfied that the Defendants had discharged the burden in proving knowledge and approval in respect of the Will.

Dementia

28.  Before us, Ms Eu SC (appearing with Ms Lin for the Plaintiffs) submitted that the Judge erred in finding that the Deceased did not suffer from dementia at the time of the execution of the Will:

(a) The finding is directly contrary to the contemporaneous medical notes and reports and CT brain scans in which the Deceased was diagnosed with senile dementia or vascular dementia and suffered from memory loss;

(b) The Judge erred in rejecting the opinion of Professor Mak by virtue of the MMSE score of 13 April 2012. 

29.  Ms Eu took us to the relevant medical records[7] set out at paragraph 7 of her skeleton submissions.  There were references to dementia, delirium, infarcts, memory loss in these documents.  They were also referred to in the expert evidence.

30.  However, the significance one can attach to such references depends on the circumstances and the purposes for which the opinions of the treating doctor were given and the tests that the person who expressed such opinions had performed before the opinions were made as well as the specialist knowledge of that person.  For example, an opinion expressed for the purpose of deciding if physical restraints should be placed upon the patient when he was hospitalized and the mode of communication with him[8] without setting out the basis for the opinion would obviously carry less weight than an opinion expressed by a specialist after due assessment. 

31.  As submitted by Mr Chan SC (appearing with Mr To for the Defendants), the references to dementia in these documents have to be read with qualifications which were set out in the reports of Dr Lam of 26 April 2016[9] and 27 February 2017[10] and a letter of 30 January 2015 from the Queen Elizabeth Hospital[11].  They were only a “possible diagnosis” and the entry was “for the good will of patient that it helped alerting others about the possible diagnosis”.

32.  Further, none of the doctors expressing those opinions was treating the Deceased for dementia.  In this connection, we respectfully disagree with Ms Eu that the Judge was wrong in taking this into account.  Obviously, if the Deceased had been subject to long term medical treatment for his mental problems, the attending doctor(s) must have performed the necessary tests (not only MMSEs which were only for screening), including continuous monitoring, before the diagnosis was made and medication prescribed accordingly.  In such scenario, the court would pay greater attention to the opinion of the treating doctor(s).  On the other hand, as in the present case, when the doctors were primarily treating the Deceased for other problems and the references were only made to alert others about possible diagnosis, the court obviously cannot attach as much significance to such opinions.  It is for the same reason that though the Judge alluded to the examination by Dr Hsu (who had treated the Deceased in April and November 2011 for gout and pneumonia[12]), he did not regard this as conclusive.

33.  The Judge had clearly taken the medical records of the hospitals on board.  He specifically mentioned the impression formed by Dr Tang at [57] to [59] of the judgment.  Dr Tang was the only psychiatrist who had prepared reports on the mental state of the Deceased in relation to fitness to execute a will.  As noted by the Judge, Dr Tang did not consider the mental impairment of the Deceased to be permanent as he suggested re-consultation when his condition improved.  

34.  As regards the other medical records, they were considered at length in the expert reports.  The Judge alluded to the same in the context of Professor Mak’s evidence at [81(2) to (7)] and in the context of Dr Chen’s evidence at [82(1) and (7)]. 

35.  We do not see any basis for suggesting that the Judge had ignored or misunderstood these medical records in his weighing of the evidence.

36.  At the same time, the Judge had evidence on how the Deceased had carried on with his life after discharge from the hospital and assessed the extent to which the Deceased had exercised his mental capacity on matters related to the preparation and execution of the July Will and the Will. 

37.  In addition to the matters set out at [70] to [79], he obviously had regard to the evidence on how the July Will and the Will came to be prepared and executed (which he accepted and adopted as his findings, in respect of which there is no challenge in this appeal) recited at [22] to [45].  It was clear from those facts that the idea of having a will originated from the Deceased and he discussed with Mr Lai regarding the same in March 2011.  The Deceased then gave instructions on the contents of the will which the 2^nd Defendant recorded in writing in May 2011.  In June 2011, the Deceased amended his instructions and the 2^nd Defendant amended the note accordingly.  Based on the instructions in the amended note, a solicitor was instructed to prepare the July Will.  There were subsequent changes which emanated from the Deceased which were incorporated[13]. Thus, though the July Will was executed soon after the Deceased was discharged from hospital, according to the evidence accepted by the Judge, it was a well-considered product on the part of the Deceased. 

38.  After the execution of the July Will, the Deceased signed an explanatory note accounting for his decision to disinherit those in the second family apart from the 1^st Plaintiff. 

39.  Then, on 23 October 2011, the Deceased indicated that he wished to further revise the July Will.  He gave instructions to the 2^nd Defendant and he wrote it down.  The Deceased chose a new firm of solicitors to prepare the revised will.  The Deceased also rejected a proposal from the 1^st Plaintiff on the distribution of income from Shops A and B after the death of the Deceased.  The Will was prepared based on the Deceased’s revised instructions and it was executed before a solicitor and his clerk on 8 November 2011 after the medical examination by Dr Hsu.  The Deceased also signed another explanatory note to account for the disinheritance of the children in the second family other than the 1^st Plaintiff. 

40.  The Judge also had regard to the evidence of the examination of the Deceased by Dr Foo on 12 January 2011 and the evidence of Dr Hsu who examined the Deceased in the morning of 8 November 2011 before the execution of the Will. 

41.  As we held at [19] above, this holistic approach is correct in law. 

42.  In light of these other evidence and also the expert evidence (which we shall discuss below), it is impossible to say the Judge’s finding on dementia is plainly wrong notwithstanding the contemporaneous medical records of hospitals.

43.  As held by Kwan JA in Re Estate of Au Kong Tim (Wills: Validity), supra, at [52], the weighing of evidence is a matter for the Judge and this Court cannot disturb his finding when he had taken the relevant evidence on board without misunderstanding the same and the finding is not plainly wrong.

44.  As regards the expert evidence, Ms Eu submitted that the burden of proof is on the Defendants and even Dr Chen accepted if a diagnosis was to be made by reference to the MMSE scores prior to 13 April 2012 he would be inclined to accept the diagnosis of dementia.  Counsel then said one cannot overturn such diagnosis simply based on the last MMSE score.  She referred to the evidence of Professor Mak who opined that there had to be something more concrete in the medical evidence. 

45.  We do not accept this submission.

46.  Firstly, as we have explained above, there had not been any definitive diagnosis of dementia by the treating doctors. 

47.  Secondly, we cannot see any merit in doing a notional diagnosis based on the first five MMSE scores and then look for evidence to rebut that diagnosis.  With respect, this is a flawed approach.  The court must assess the testamentary capacity based on all the relevant evidence and that must include the last MMSE result which, as the Judge reasoned at [84] of the judgment, immediately cast serious doubt on Professor Mak’s finding of dementia.  The answer given by Professor Mak at the trial (which Ms Eu relied upon in this appeal) that one cannot reason backwards from 2012 to 2011 simply missed the point.  The last MMSE score gave rise to a hurdle to the theory of dementia not because of postulating backward to 2011.  The problem, as explained by the Judge at [84], stems from the incontrovertible premise that the condition of a dementia patient is irreversible.  The last MMSE score of 20/30 on 13 April 2012 is a marked improvement on the score of 5 April 2012, just a few days earlier.  The Judge was correct in finding that Professor Mak had failed to give a satisfactory explanation for the last MMSE score which is consistent with the Deceased suffering from dementia.

48.  Thirdly, having read the relevant parts of the transcript concerning Dr Chen’s evidence which Ms Eu drew our attention to, we are of the view that Dr Chen did not say he would definitely come to a finding of dementia based on the first five MMSE scores. The doctor said he would have checked more closely[14]. He also said one has to be careful as long as MMSE score went up as cognitive dysfunction can fluctuate for various reasons[15].  We do not accept that any mileage could be gained by Ms Eu by reference to Dr Chen’s use of the expressions “rethink” or “revisit”.  A diagnosis by a doctor is simply an opinion based on the information available to him.  There is nothing sacrosanct about such opinion.  Like any other professional opinion, when further information becomes available which cast doubt on the original diagnosis, one must reconsider if the original diagnosis still stands.

49.  In our judgment, Ms Eu mischaracterized the reasoning of the Judge as using the last MMSE score as a diagnostic tool to come to a finding against dementia.  The Judge did not use the last score as a diagnostic tool.  He merely pinpointed an unexplained inconsistency in the theory postulated by Professor Mak that the Deceased was suffering from dementia. 

50.  As the Judge observed, counsel for the Plaintiffs at the trial (not Ms Eu) was driven to invite the Court to ignore the last MMSE score in order to defend the integrity of the dementia theory.  We cannot see any basis to differ from the Judge in rejecting such attempt.

51.  For these reasons, we uphold the Judge’s finding against dementia.

Testamentary capacity

52.  Ms Eu submitted that the Judge erred in not adjudicating on the Deceased’s testamentary capacity in respect of the July Will and in finding that the Deceased had testamentary capacity in executing the Will.

53.  Ms Eu placed great emphasis on the nexus between the July Will and the Will.  Counsel thus submitted that the Judge should have made a specific finding on the testamentary capacity of the Deceased in respect of the July Will. 

54.  With respect, this is a false point.  Whilst one can readily see the nexus between July Will and the Will (given the history as to the genesis of the Will), the Judge had plainly paid regard to the circumstances surrounding the making of the July Will and the mental well-being of the Deceased at the time of the July Will.  Thus, in describing the significant events leading to the execution of the Will, the Judge actually started from the meeting with Mr Lai in March 2011, see [22] to [45] of the judgment as summarized at [37] above. The Judge obviously had this history in mind in assessing the testamentary capacity of the Deceased in making the Will as one of the matters he alluded to at [70] to [79] was the meeting with Mr Lai in March 2011.  There is no question of the Judge having failed to consider the different periods of hospitalisation of the Deceased in 2011 and the medical reports during those periods, in particular the hospitalisation from 3 to 13 July 2011.  At [27], the Judge referred to the 2^nd Defendant visiting the Deceased in hospital when the latter gave some further instructions regarding the July Will.  In the table of MMSE scores, one of the items was the score for 11 July 2011 and the Judge included in the table the date of the July Will (16 July 2011) immediately below that score. 

55.  The significance of a finding against dementia is that one simply cannot assume that the mental state of the Deceased had not recovered from a mental state which gave rise to an earlier low MMSE score.  In other words, one cannot assume that because the 4^th and 5^th MMSE scores were low (14/30 on 11 July 2011 and 11/30 on 5 April 2012), the Deceased persisted with such mental incapacity throughout that period.  A comparison of the 5^th and 6^th scores demonstrated that his mental state could improve significantly within a matter of days.  Thus, we cannot accept the submission of Ms Eu that the Will was in any event executed at the time when the Deceased was mentally incapacitated in light of the 4^th and 5^th MMSE scores.

56.  It should be remembered that the claim of the Plaintiffs was for the revocation of the grant on the basis of the Will and the submissions on testamentary capacity did not differentiate the position regarding the Will and the July Will.  Counsel representing the Plaintiffs at the trial did not suggest that the court should assess testamentary capacity regarding the July Will separately or to use that as a starting point for assessment of testamentary capacity in respect of the making of the Will.  It is thus unsurprising that the Judge did not see any need to do a separate assessment for the July Will after he had come to the conclusion that the Will was validly made.  [94] of the judgment should be read in this light.

57.  Ms Eu further submitted that the Judge erred in the following respects in the assessment of testamentary capacity in respect of the Will:

(a) The Judge wrongly held at [86] that if the Deceased was not suffering from dementia at the time of execution of the Will there would be no basis for saying that he had no testamentary capacity;

(b) The Judge erred in failing to assess the second and third limbs in the test for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 at 565;

(c) The Judge erred in holding that the Will was rational notwithstanding it made no provision for Chi Sing and grandchildren other than the daughter of the 2^nd Defendant;

(d) The Judge did not investigate into some suspicious circumstances: in particular, the insertion of a 3-year prohibition clause in the July Will and its removal in the Will, the drafting of a codicil in July 2011 and an option agreement;

(e) The Judge placed undue weight on the execution of the Will before a solicitor notwithstanding his failure to adhere to the good practice discussed in Re Estate of Au Kong Tim (Wills: Validity), supra;

(f) The Judge placed undue weight on the evidence of Dr Hsu notwithstanding his failure to follow the practice suggested in Kenward v Adams (1975) The Times, 29 November 1975;

(g) The Judge placed undue weight on the execution of several legal documents by the Deceased between end of 2010 and September 2012.  

58.  We do not find these to be valid bases for challenging the Judge’s assessment of the evidence on testamentary capacity on the facts and circumstances of the present case.

59.  The Judge’s observation at [86] of the judgment should be read in light of the way the case was pleaded and argued before him.  In the Amended Statement of Claim, only two bases were pleaded at paragraph 11 to advance the case of lack of testamentary capacity: dementia and delirium.  

60.  At trial, the then counsel for the Plaintiffs focused on running a case of dementia and relied on the inability of the Deceased to recognize the 2^nd Plaintiff and her sister in Shenzhen to support the same.  Whilst the persuasive burden of proof of testamentary capacity lies with the Defendants, counsel for the Plaintiffs accepted that the Plaintiffs had to adduce evidence sufficiently cogent and probative to raise the issue[16].   In the closing submissions, counsel for the Plaintiffs again argued the case on testamentary capacity based on dementia[17].   There was no evidence that the Deceased suffered from delirium at the time of the execution of the Will.  It was against such background that the Judge made the comment he did at [86]. 

61.  Reading the judgment as a whole, it is quite plain that the Judge did not rule on testamentary capacity simply based on his finding that the Deceased did not suffer from dementia.  As discussed above, he referred to other factual matters relating to giving instructions and the preparation of the Will and other circumstances around the time of the execution of the Will to demonstrate the mental soundness of the Deceased.  We do not see any merit in the submission based on a reading of [86] out of context.  

62.  The same observation can be made with regard to the lack of separate assessment of the second and third limbs of the test in Banks v Goodfellow, supra.   The Judge had alluded to the four criteria at [68(1)] of the judgment.  In the pleading as well as submissions, counsel for the Plaintiffs argued the question of testamentary capacity globally without analysing each limb of the test separately.  The expert evidence adduced before the Judge also did not address each limb separately.  There was no suggestion that if the first limb of the test was satisfied, there could still be problems regarding the second and third limbs for reasons not applicable to the first limb.  It was against such background that the Judge did not find it necessary to address each limb one by one.

63.  Ms Eu relied heavily on Re Estate of Au Kong Tim (Wills: Validity), supra, and submitted that the present case is indistinguishable from that case.  With respect, Ms Eu failed to have regard to what was said subsequently by Kwan VP in Re Estate of Wong Yin Sheung, supra.  As discussed at [18] above, the crucial question is whether there was sufficient evidential basis for inferring that all the criteria in Banks v Goodfellow had been satisfied. 

64.  In the present case, in respect of the second limb of the criteria, viz understanding as to the extent of the property being disposed of under the Will, as Yuen JA observed during the course of hearing, the Will (as well as the July Will) dealt with various parts of the Deceased’s remaining assets separately item by item.  This was very different from the will in Re Estate of Au Kong Tim (Wills: Validity), supra, where it only provided for the disposition of the residuary estate of the testator[18].

65.  Further, as submitted by Mr Chan, the Will dealt with all the remaining assets of the Deceased and there was no other asset in the Schedule of Property in the probate application.

66.  Given the factual finding by the Judge that all the instructions for the contents of the July Will and the Will came from Deceased, the changes between the July Will and the Will occasioned by the assignment of ½ share in the South Horizons Property provides evidence on the appreciation on the part of the Deceased as to the assets he was disposing of under the Will and the July Will. 

67.  In respect of the third limb of the criteria, viz the comprehension and appreciation of claims to which the testator ought to give effect, the explanatory notes signed by the Deceased in July and November 2011 are strong evidence for inferring that the Deceased had such comprehension and appreciation. 

68.  Ms Eu however submitted that the notes did not account for not giving Kin Sing any share in the proceeds of Shops A and B and giving a share to one granddaughter but not the other grandchildren.  As far as Kin Sing is concerned, the deletion of the provision for South Horizons Property in the Will clearly showed that the Deceased had him in mind.  Though there was no exact valuation, and notwithstanding the payment of $1.5 million by Kin Sing, Mr Chan correctly submitted that there was an element of bounty in the transfer of the ½ share. 

69.  As regards rationality and the giving of 1 share to the daughter of the 2^nd Defendant but not the other grandchildren, the Judge had accepted the explanation for that at [71(3)] of the judgment.  Rationality does not mean equal distribution of the assets.  Actually, in many cases it is perfectly rational to make unequal distribution and no presumption of irrationality can arise from a mere unequal provision for the testator’s close relatives.  The third limb of the criteria should not be applied in such a way as to require detailed explanation by an elderly or infirm testator for the unequal distribution of his estate in a will.  That would be undue interference with testamentary freedom which is a facet of the principle of self-determination underpinned by human right protections[19].    

70.  On the facts of the present case, we agree with the Judge’s assessment of the rationality of the Will.

71.  The so-called suspicious circumstances relied on Ms Eu are, with respect, red-herrings.  The unexecuted codicil and draft option agreement were alluded to at [34].  The Judge did not consider those as matters of any moment.  We agree.  Ms Eu failed to persuade us that these unexecuted documents could have any bearing on the assessment of the second or third limb of the criteria in Banks v Goodfellow. 

72.  It is noteworthy that these matters featured in the closing submissions of counsel for the Plaintiffs in the context of credibility of the defence witnesses.  They were merely relied upon as matters collateral to the assessment of credibility.  Since Ms Eu repeatedly assured us that she is not challenging the Judge’s finding on credibility, these matters could not have any relevance in this appeal.

73.  The observations in the last paragraph apply equally regarding the three-year prohibition in the July Will and its deletion in the Will.  At the hearing of the appeal, Ms Eu placed more emphasis on knowledge and approval when she addressed us about the lack of investigation regarding the three-year prohibition.  We shall likewise discuss this in that context.

74.  The submission as to the weight given on the execution of the Will before a solicitor and the report of Dr Hsu and the execution of other legal documents is misplaced.  As we have seen, the Judge did not regard any of these matters to be conclusive and he adopted a holistic approach in assessing the testamentary capacity of the Deceased.  The Judge was clearly aware of the shortcomings in the preparation and attestation of the Will by the solicitor in comparison with the good practice endorsed in Re Estate of Au Kong Tim (Wills: Validity), supra.  He was equally aware of the non-compliance with the guidance in Kenward v Adams, supra.  His reference to the other legal documents was to highlight the fact that they were executed before different law firms and none of the handling solicitors found anything amiss regarding the mental capacity of the Deceased.  In our judgment, these matters are relevant and the Judge did not err in making reference to them.  The weight to be attached to these matters in light of the other evidence is a matter for the Judge.  As long as the ultimate finding is not plainly wrong, this Court cannot disturb the same.

75.  We do not find any ground to overturn the Judge’s assessment of testamentary capacity.  Further, based on the materials before us and in light of the findings of facts of the Judge (which are not challenged on appeal), were we to assess the question of testamentary capacity afresh, we would hold that the Defendants have satisfied all the criteria in Banks v Goodfellow on the balance of probabilities.

Knowledge and approval

76.  The Judge proceeded on the basis that the second rule in Barry v Butlin, supra, applied.  In other words, he did not act on the presumption that knowledge and approval was established upon proof of due execution (not in issue in the present case) and testamentary capacity.  Instead he looked for affirmative evidence that the Deceased knew and approved the contents of the Will.  At [90] of the judgment, he also adopted the approach that the court would be vigilant and jealous in examining the evidence in this respect. 

77.  Citing Ribeiro PJ in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at [218], the Judge held that the evidence required to satisfy the court on knowledge and approval depends on the circumstances which triggered the second rule and the proponent is not required to dispel any circumstances which might be said to be suspicious in relation to the will propounded. 

78.  In Nina Kung, supra, the Court of Final Appeal held that the trial judge in that case erred in imposing a burden of dispelling suspicious circumstances on the proponent of the will[20].  In light of the submissions of Ms Eu, it is perhaps helpful to remind ourselves of the true extent of the duty to dispel suspicious circumstances as stated by Ribeiro PJ at [218]:

“ It follows that properly understood, Tyrrell extends the second rule only 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. In such cases the proponent of the will was equally required to dispel that suspicious circumstance by adducing affirmative evidence that the testator did indeed know and approve the contents of the will. The case is not authority for any broader rule, far less authority for requiring the person propounding the will to dispel any circumstances which might be said to be suspicious in relation to the will propounded.”

79.  The only burden borne by a proponent of a will when the second rule in Barry v Butlin, supra, is applicable is to adduce affirmative evidence of knowledge and approval.  He does not assume a further burden to dispel any circumstances which might be said to be suspicious[21]. In this connection, albeit the context is slightly different[22], the observations of Ribeiro PJ at [233] are equally apposite:

“It was not enough merely to raise “suspicious circumstances” about matters surrounding the contested will.  That is an approach which places a burden on the proponent which is potentially impossible to dispel, human ingenuity being such that, with little effort, a procession of supposedly suspicious circumstances and unanswered questions can be paraded before the court.  Such a burden is arguably more stringent than the criminal standard requiring proof beyond reasonable doubt.”

80.  The onus on a proponent of a will is to prove knowledge and approval on the balance of probabilities.

81.  In the present case, the Judge acknowledged that there were shortcomings in the attesting solicitor’s confirmation of the knowledge and approval of the contents of the Will with the Deceased.  In particular, the Judge accepted that the solicitor should have asked the Deceased non-leading questions. 

82.  In light of that, the Judge did not simply rely upon the confirmation by the solicitor with the Deceased as sufficient evidence of knowledge and approval.  At [93] of the judgment, the Judge took account of all the circumstances in the case including the matters set out at [70] to [79] in holding that the Defendants had discharged the burden of proving knowledge and approval affirmatively.

83.  Ms Eu submitted that the Judge’s finding was flawed as he failed to consider at length the inadequacies in the solicitor’s enquiries with the Deceased.  Counsel highlighted such deficiencies at paragraphs 34 and 35 of her skeleton submissions by reference to the standard of good practice discussed in Re Estate of Au Kong Tim (Wills: Validity), supra.  However, it should be noted that some of those deficiencies have more relevance in the context of testamentary capacity than the question of knowledge and approval. 

84.  We do not accept that the Judge had erred in finding knowledge and approval in the way he did.  It is quite clear to us that the Judge was aware of the deficiencies in the solicitor’s handling of the execution of the Will.  Otherwise, the Judge needed not refer to other evidence to satisfy the burden of proving knowledge and approval affirmatively.  Williams, Mortimer & Sunnuck on Executors, Administrators and Probate (2018) at paragraph 10-30 had this to say,

“ Affirmative proof of knowledge and approval may take any form, provided it is strong enough to satisfy the court, and that it satisfies the one-stage test in Gill v Woodall. The fact that the deceased gave instructions for his will, or that it was read over to him or by him is no doubt the most satisfactory, but not the only satisfactory form of proof. … Where a testator had the opportunity to read the will both before and after signing, it was ‘nothing short of fanciful’ to suggest that he did not know and approve of its contents …

A reading over of the will must be proper and sufficient if it is to show knowledge and approval. … In Inchbald v Inchbald[23], the evidence was that the testator had been told what the will would contain, was taken through the draft at execution, and then again told of its terms after execution; the court at first instance had ‘no hesitation’ in concluding that the testator was aware of the ‘nature and effect’ of what he was doing when he executed his will …”

85.  The one-stage test in Gill v Woodall [2011] Ch 380 was discussed in Williams, Mortimer & Sunnuck on Executors, Administrators and Probate (2018) at paragraph 10-29:

“ In Gill v Woodall, the Court of Appeal confirmed that the correct approach to considering knowledge and approval was to ask a single question, namely had the testator understood: (a) what was in the will when she signed it; and (b) what its effect would be. That question should be considered in the light of all the available evidence, and the appropriate inferences to be drawn from that evidence.”

86.  The evidence of the solicitor, accepted by the Judge, specifically allude to the explanation of the contents of the will clause by clause and its nature and effect to the Deceased, see [42(5)].  He also confirmed with the Deceased that those were all the properties that the Deceased would dispose upon death, [42(6)].  Such evidence already provided a good basis for finding knowledge and approval when there was no difficulty with testamentary capacity. 

87.  Further, the Judge did not simply act on the confirmation of the contents of the Will by the solicitor with the Deceased. He alluded to the circumstances leading to the making of the July Will and the Will at [22] to [45] of the judgment.  After reminding himself to be vigilant, his findings were that the instructions for the preparation and the contents of the July Will and the Will came from the Deceased himself who also explained the disinheritance of some members of the second family in the two explanatory notes.  In light of such findings (which, as we have already observed, are not challenged in this appeal), it is indeed fanciful to suggest that the Deceased did not have knowledge or approval of the contents of the Will. 

88.  Ms Eu referred to passages in Williams, Mortimer & Sunnuck on Executors, Administrators and Probate (2018) to highlight that this is a case where the second rule in Barry v Butlin, supra, applied.  As the Judge had proceeded on that basis, it is not necessary for us to discuss the same.

89.  Ms Eu referred to the matters raising suspicion in the case and we have addressed most of them in the context of testamentary capacity.  In respect of the 3-year prohibition in the July Will and its deletion in the Will, as we said this was only raised as a point in the context of credibility of the Defendants in closing submissions. 

90.  In any event, as explained by Ribeiro PJ, once there is sufficient affirmative evidence for knowledge and approval, the law does not require the proponent of a will to dispel all suspicious circumstances. 

91.  For the 3-year prohibition, the documents in the file of S.T.  Cheng & Co show that the provision was in the first draft attached to an email of 12 July 2011 and after that there were further changes made to the draft for the July Will.  Subsequent drafts were also sent by way of attachments to emails.  Though the provision was not included in the initial handwritten instructions, we do not find anything calling for further investigation in terms of knowledge and approval for the inclusion of such a provision in the July Will.

92.  As regard the deletion of that prohibition, it was clearly done upon instruction as evidenced by a handwritten notation on a copy of the July Will found in the file of Peter W.K. Lo & Co.[24] Again we cannot see how this deletion would give rise to difficulty with knowledge and approval.  It is thus not surprising that the Judge did not find it necessary to allude to it in the judgment, particularly when counsel for the Plaintiffs did not argue at the trial that such deletion gave rise to an issue in the context of knowledge and approval.

93.  There is no merit in the ground of appeal in respect of knowledge and approval.

Disposition

94.  In the circumstances, the appeal is dismissed. We also make a costs order nisi that the Plaintiffs shall pay the costs of the appeal with certificate for two counsel, such costs are to be taxed if not agreed.