LAM HUI SAI PING RINA v. WAI KEE SHUN AND OTHERS

HCAP 12/2016

[2024] HKCFI 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 12 OF 2016

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JUDGMENT

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1.  This is the trial of the action by the plaintiff (“Rina”) to challenge the validity of the last will of her late mother, Madam Lung Yee Fun (“the Mother”) dated 21 June 2013 (“the 2013 Will”). The 1^st defendant (“Wai”) is the sole executor named in the 2013 Will. The 2^nd defendant (“Lung”) and the 3^rd defendant (“Jason”) are the beneficiaries. So is the 4^th defendant (“TWGH”).

BACKGROUND

2.  The late Mr Hui Ka Wing (“the Father”) was in the business of watch dealing in Hong Kong.  The Mother was born in July 1922.  The Father and the Mother gave birth to two children, the late Mr Hui Sai Ning (“the Son”) and Rina.  The family property was at the 3/F, Antonia House, No. 12 Broom Road, Hong Kong together with Car Parking Space No. 25 (“the Property”).

3.  In 1969, Rina got married and has since had her own family.  The couple gave birth to Jason.  Jason studied in the United States during teen age and has since remained there practising medicine.  Jason is married and has 2 children.  Rina is now 77 years old.

4.  As to Lung, his father was the stepbrother of the Mother, which makes Lung the Mother’s nephew.

5.  On 11 August 2006, the Father passed away, leaving his will dated 25 August 1993.  By the Father’s will, the Mother, the Son and Rina were appointed the executors and trustees.  Under the will, the Son was entitled to 49% while the Mother and Rina were each entitled to 24% of the Father’s estate.  Jason was entitled to the remaining 3% of the Father’s estate under the will.

6.  On 27 May 2013, the Son passed away intestate when the Mother was about 91 years old.

7.  Then the Mother made the 2013 Will, which was prepared by Messrs Philip KH Wong, Kennedy YH Wong & Co (“PWKW”).  The 2013 Will contains, amongst other things, the following provisions:

(1)  She revoked all her former wills and testamentary dispositions (§1);

(2)  Wai would be the sole executor and trustee (§4);

(3)  Her burial and funeral should be conducted in Buddhist ceremony (§5);

(4)  Jason would receive a sum of HK$10,000,000 (§6);

(5)  Lung would receive a sum of HK$10,000,000 (§7);

(6)  Lung would receive the Property (§8); and

(7)  Subject to the payment of debts and other expenses, TWGH would receive the residuary estate of the Mother (§9).

8.  A year later, on 12 June 2014, the Mother passed away.

9.  On 4 November 2014, probate in respect of the 2013 Will was granted to Wai as the sole executor.  Wai also became the administrator of the Son’s estate pursuant to the letters of administration dated 14 December 2015.

10.  On 14 June 2016, Rina commenced the present action, as mentioned, challenging the validity of the 2013 Will.

POSITION OF THE PARTIES

11.  While she does not admit the due execution of the 2013 Will, Rina’s main contention is really that the Mother, in view of her advanced age and health condition at the material time, did not have the requisite testamentary capacity and/or that she did not know and approve of its contents.

12.  By pleading, Rina questions the absence of provision under the 2013 Will for her as her sole surviving child.  She also contends that the Mother was familiar with neither Wai nor TWGH so as to come up with the terms of the 2013 Will.  Such terms, she says, were the result of manipulation by Wai and/or influence of Lung.  She alleges that Wai is associated with TWGH so that Wai would indirectly benefit in the form of acknowledgement and recognition for his procuring the substantial donation by the Mother’s estate to TWGH.

13.  Rina alleges that the Mother was at the material time suffering from senility, a mental condition said to have affected her capacity to make any will.  The Mother is said to have been given insufficient time and opportunity to consider her testamentary intention or the draft will before execution.

14.  Sued in his sole capacity as the executor and trustee named in the 2013 Will, Wai takes a neutral stance in the present action.

15.  In the present action, Lung asserts no more than what he personally knows.  Essentially, he allegedly received a telephone call from the Mother in June 2013 over which he was told that she was at the solicitors’ office preparing her will. He was informed of her intention to appoint Wai as the executor, to make a testamentary gift of HK$10,000,000 to him and to pass to him the Property as well as to donate part of her estate to TWGH.  By his solicitors’ letter dated 10 October 2019, Lung also indicated his neutral stance in the present action.

16.  The major protagonist on the defence side is TWGH.  TWGH needs no introduction as one of the most established and well-known charitable organizations in Hong Kong.

CIRCUMSTANCES SURROUNDING THE 2013 WILL

17.  Essentially, the Father was acquainted with PWKW, which was instructed to prepare his will.  After the Father’s death, PWKW was instructed to apply for the grant of probate and to assist in the administration of the Father’s estate.

18.  After the passing of the Son, the Mother allegedly indicated her intention to make a new will and asked if Wai would agree to take up the role of executor of her estate.  Wai agreed.  Hence instruction by the Mother to PWKW in June 2013 to prepare her new will.  She also instructed PWKW to apply for the grant of administration of the Son’s estate.

19.  There were 3 meetings at the office of PWKW on 13, 19 and 21 June 2013 where the Mother was attended to by the responsible legal executive, Ms Rose Chan (“R Chan”), while Mr Winfield Wong (“W Wong”), partner of the firm, was present in the last of those meetings.  The 2013 Will was executed by the Mother and attested by R Chan and W Wong as witnesses at the end of the third meeting on 21 June 2013.  What happened during those meetings are in dispute.  So are the condition of the Mother at the material time as well as its alleged impact on her testamentary capacity, state of knowledge and approval of the content of the 2013 Will.

20.  TWGH claims no knowledge about the acquaintance between Wai and the Mother.  It sees no financial benefit derived by Wai under the 2013 Will.  It also denies any benefit as Rina alleges by reference to Wai’s association with TWGH.  It points out that Wai had served as one of its directors for the year 1958/1959, and it has no mechanism or policy of acknowledgement or recognition of a former director’s procurement of donation made to it.

21.  Apart from setting out the circumstances of the making of the 2013 Will, TWGH, as it came to know, revealed in its defence the existence of the prior will made by the Mother in 1996 (“1996 Will”). Therefore, in the event that the 2013 Will is ruled to be invalid, the estate of the Mother would have to be distributed in accordance with that prior will.

22.  The 1996 Will was dated 28 June 1996 whereby, amongst other things:

(1)  the Son was appointed as the sole executor and trustee (§1);

(2)  the Property would be bequeathed to the Son absolutely (§3);

(3)  the Son as trustee should hold the residuary estate in 10 equal shares, of which 1 share would go to Jason and the remaining 9 shares would go to the Son absolutely (§5). 

23.  Rina used to deny the existence and validity of the 1996 will.  That was so, notwithstanding the actual discovery of the 1996 Will at the Property during the parties’ joint visit in July 2018 and its formal discovery by TWGH for the present action in November 2018.  Her position was that if the 2013 Will is ruled to be invalid, she should be entitled to 100% of the estate of the Mother on the basis of intestacy.  Rina maintained such position until just before the trial.

24.  Before the trial, Rina sought to amend her pleading, which was allowed by consent of the parties with costs to Lung and TWGH.  Rina retracted her denial of the validity of the 1996 Will.  Her position now, and hence the common ground, is that without the 2013 Will, the estate of the Mother should be distributed in accordance with the 1996 Will.

25.  The premature passing of the Son during the Mother’s lifetime would however cause the Mother’s bequest in favour of the Son under the 1996 Will to fail, giving rise to partial intestacy of her estate which now consists of her entitlement to the Son’s share of the Father’s estate under the Son’s own intestacy.  In other words, whilst the Mother made no provision for Rina under the 1996 Will, Rina now seeks her entitlement arising out of such partial intestacy of the Mother’s estate under this will.  See section 4 of the Intestates’ Estates Ordinance, Cap 73.

THE ISSUES

26.  The validity of the 2013 Will hinges upon the answers to the following questions:

(1)  Whether the will was duly executed;

(2)  Whether the Mother was of testamentary capacity;

(3)  Whether the Mother knew and approved of the content of the will.

THE PRINCIPLES

Formal validity

27.  Due execution of a will is an issue of formal validity, which depends on the compliance with the following statutory requirements under section 5 of the Wills Ordinance, Cap 30:

(1)  The will is in writing, and signed by the testator.

(2)  It appears that the testator intended by her signature to give effect to the will.

(3)  The signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4)  Each witness either attests and signs the will or acknowledges his signature in the presence of the testator.

(5)  Notwithstanding non-compliance with the above, the document purporting to embody the testamentary intentions of the deceased shall be deemed to be duly executed if the court is satisfied beyond reasonable doubt that the document embodies the testamentary intention of the deceased.

28.  The fight in this action is not so much about the formal execution of the 2013 Will which without real dispute took place at the office of PWKW in the presence of R Chan and W Wong on 21 June 2013.  It is really about the testamentary capacity of the Mother at the material times and whether she knew and approved of the content of the will when the same was executed.

Testamentary capacity, knowledge and approval – the approach

29.  When the validity of a will is being challenged on the grounds of lack of testamentary capacity or state of knowledge and approval, the court adopts the following general approach on the burden of proof: see Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at §§171-176; applied in Chiu Man Fu & Ors v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012)at §48; Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 at §§13-33:

(1)  A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the testator. The proponent of the will must show on a preponderance of the evidence that it is the will of the testator.  This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that the testator was of testamentary capacity, and that the testator knew and approved of the contents of the will.

(2)  If someone wishes to dispute the validity of a will on the grounds that there is want of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.

Testamentary capacity – the criteria

30.  The 4 criteria for testamentary capacity laid down (at 565) in Banks v Goodfellow (1869-70) LR 5 QB 549 and recited in Chiu Man Fu & Ors v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013) (at §52) are as follows:

(1)  A testator shall understand the nature of the act and its effects.

(2)  He shall understand the extent of the property of which he is disposing.

(3)  He shall be able to comprehend and appreciate the claims to which he ought to give effect.

(4)  No disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties. 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.

31.  Each of the above criteria must be satisfied before the court holds that the testator had the requisite testamentary capacity at the material time: see Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 (at §29).

32.  Where the will was prepared by experienced and independent solicitors, the court is expected to exercise caution before the same should be upset on the ground of mental incapacity.  Where the will was so prepared after actual meeting with the testator when the solicitor was instructed and formed the opinion from the meeting that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational, and the will so drafted was executed after it has been read though and explained by the solicitor, 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: see Hawes v Burgess [2013] EWCA Civ 94 at §§57, 60.

33.  However, the appellate court in Re Estate of Au Kong Tim (Wills: Validity) (above) made clear (at §§59; 77) that this is not to say that the opinion of an experienced and independent solicitor in respect of the capacity of the testator, without more, should be conclusive. Any such opinion must be shown to be based on proper assessment and accurate information.  There also comes the consideration of the often cited “Golden Rule”.

34.  The “Golden Rule” suggests that in case of an aged or seriously ill testator, his will should be witnessed or approved by a medical practitioner.  The appellate court in Re Estate of Au Kong Tim (Wills: Validity) explained (at §§2.1-2.4) that in practice, the solicitor who wishes to discharge his duty properly is expected to meet the testator personally for the purpose of taking or confirming instructions in respect of a checklist of information.  The solicitor should refer to the checklist set out in the ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ published by the British Medical Association and the Law Society to ascertain whether the testator is capable of understanding the nature of the act and its effects, understanding the extent of the property being disposed of as well as comprehending and appreciating the claims to which a person making a will ought to give effect.

35.  That being said, the appellate court also explained (at §8) that compliance with the “Golden Rule” does not operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity.  Its purpose is to assist in the avoidance of disputes or at least in the minimization of their scope by ensuring that basic requirements for the validity of a will would not be overlooked.  That the so-called rule is really a matter of good practice was further made clear by the appellate court in Re Estate of Wong Yin Sheung [2019] HKCA 452.

36.  In Re Estate of Lau Heung [2019] HKCA 769, the attesting solicitor had not adopted the ‘golden rule’ or the checklist procedure mentioned above but the will was upheld at trial and on appeal.  The appellate court in that case (at §§18 and 19) referred to Re Estate of Wong Yin Sheung (above) where the appellate court, as mentioned, made it clear that much would depend on the facts and evidence in a case.  The court also noted that Re Estate of Au Kong Tim (Wills: Validity) (above), as mentioned, 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 rule as a matter of good practice.  The question of testamentary capacity is a practical question and the court has to holistically assess the question by reference to all the evidence including, but not limited to, medical evidence, and to judicial common sense.  Such understanding was most recently reiterated and applied in Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 at §22.

37.  In other words, the question of whether or not a testator had testamentary capacity at the material time does not depend solely on scientific or legal definition or medical evidence.  Nor does compliance or not with the ‘golden rule’ or the checklist procedure and guidelines in the instruction taking mentioned above serve more to answer the dispute than as a good practice to avoid or minimise dispute in the first place.  It is ultimately a practical question of degree to be resolved on the basis of the facts and circumstances of each case as they happened.  The criteria in Banks v Goodfellow (above) are not matters that are directly medical questions, but are matters for common sense and judicial judgment upon a holistic assessment of all the evidence.  See also Theobald on Wills (19^th ed) at §4-019.

38.  The physical and mental condition of the testator, and its impact on his testamentary capacity, at the material times aside, the court would consider the rationality of the disposition under the will in the circumstances of the case.  That also calls for caution, as the court has recognized that human nature is multi-dimensional and at times complicated, and therefore a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices.  Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride.  Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives.  Eccentricity or lack of justice or even lack of common sense in the dispositions is not of itself enough.  The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity.  The court does not sit to correct injustices in that respect.  In other words, the law does not require a testator to act fairly, as one may perceive, when he makes a will.  The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not, as this is not the test of whether he had the testamentary capacity to make the will: see Chiu Man Fu (CFI) (above) (at §§74-75).  Without prejudice to the above, comparison of the will with the testator’s previous testamentary disposition may cast light on the rationality of the former: see Lee Wai Ho v Fung Kui Chuen, HCAP 21/2011 (19 August 2014) at §21.

Knowledge and approval of the content of the will

39.  While testamentary capacity refers to that of the testator to understand what he was doing, knowledge and approval of the content of the will refer to whether he did in fact understand what was in the will when he signed it; and what its effect would be: see Theobald on Wills (above) at §4-042; Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21^st ed) at §10-29.

40.  Proof of the due execution of the will and testamentary capacity may suggest knowledge and approval but that is rebuttable by contrary evidence: see Nina Kung (above) at §206.  This is particularly where the circumstances excite suspicion.  One instance is where the person benefitted by a will himself writes or procures it to be written, so that the circumstance forms a just ground of suspicion and calls upon the court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the testator.  This is the so-called (second) rule in Barry v Butlin (1838) 2 Moo PCC 480 as discussed in Nina Kung (above) at §208; Lee Wai Ho (above) at §103.  Dramatic departure from previous testamentary disposition with the effect of benefiting such a person is another instance.

THE FACTUAL WITNESSES – AN OVERVIEW

41.  The principles in respect of assessment of credibility of witnesses as to fact are often cited and not really disputed: see for instance, Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) at §§77-90.  Consideration needs to be had of the inherent likelihood or unlikelihood of an event having happened as alleged. The evidence must also be tested against the undisputed or indisputable evidence as well as assessed in respect of its internal consistency.

42.  Rina gave evidence.  She called Ms Wong Man Chi (“Wong”), who was the domestic helper at the Property employed by the Mother since 22 March 2013, which was 2 months prior to the Son’s death.  Not much needs to be said about her neutrality in terms of benefit from the litigation.  She is expected to have spent substantial time with the Mother on a daily basis since her employment.  That said, both her neutrality and actual state of knowledge about relevant matters and persons deserve scrutiny for reasons which will be discussed further below.

43.  Rina also called Mr Chow Kam Nin (“Chow”) as her witness.  Chow was a nephew of the Mother.  Again not much needs to be said about his neutrality in terms of benefit from the litigation.  However, when it transpired from his oral evidence that what he has stated blurred between personal observations and speculations, and he obviously did not take the challenge about them at the trial so well, his reliability is called into question.  In his oral evidence, he demonstrated lack of readiness to accept the testamentary intention of the Mother, even assuming that is proved to have been as set out in the 2013 Will. He made clear his view that it would be unreasonable to allow the Mother to donate the bulk of her estate to charity.  In doing so, Chow considered what the Mother sought to do was to give away the Father’s hard earned money.  In other words, it is about the very idea of donation that he has opinion.  However, he failed to acknowledge the undisputed fact that the Mother had originally intended to leave her estate to the Son and Jason under the 1996 Will.  He also failed to acknowledge the undisputed fact that if the 2013 Will is proved, Jason would remain a beneficiary.  Be it under the 1996 Will or the 2013 Will, Rina’s 24% share of the Father’s estate would also remain untouched.  On that basis, be it originated from the hard earned money of the Father or not, the Mother only sought, as she was entitled, to dispose of her own estate which now consists of what of the Son’s estate that the Mother, not Rina, had become entitled to. Chow’s neutrality as a witness is coloured by certain perception very much of his own about the manner of distribution of the Mother’s estate.  His evidence should be assessed with caution.

44.  Lung gave evidence.  He is a straightforward and adequately neutral witness.  As mentioned, he asserted no more than what he knew, and tendered testimony without leaving one with any impression that it was somehow driven by a desire to guard his pecuniary benefit under the 2013 Will.  He acknowledged what his apparent entitlement under the 2013 Will truly entails in view of the express wish of the Mother behind such bequest to him.

45.  Pursuant to leave of the court, Wai and Mr Chan Ping Wai Simon (“S Chan”) gave evidence by way of deposition on 9 and 10 September 2021, which was also held before this Court.  Leave was given for the transcript of the deposition proceedings to be adduced as evidence of these witness in conjunction with their witness statements at the trial.

46.  According to Wai, he came to know the Father and the Mother on social occasions, and the three had many mutual friends. Accuracy of his account of the family background of the Father and the Mother known to him aside, Wai’s evidence, considered together with the other evidence, certainly did not impress this court that he was as a stranger to the Mother as what Rina and Wong tried to portray.  In considering their reliability, the true state of relationship between the Mother and Rina is relevant.  So is the true state of knowledge on the part of Wong who, as mentioned, had worked as domestic helper of the household for only 2 months before the names of Wai and Lung were mentioned to her by the Mother.

47.  S Chan was the godson of the late Madam Long Yuck Yuen Flora (“Long”), distant cousin of the Mother.  According to him, the two distant cousins had known each other since childhood.  The two were close, and maintained frequent telephone contact and gathering such as mahjong playing. Through Long, S Chan came to know the Mother.  Since Long passed away in 2011, the Mother would telephone S Chan and invite him out for meals together.

48.  TWGH also called the following witnesses as to fact at the trial.

49.  Dr Ng Shu Yan (“Dr Ng”) is a registered chiropractor practicing in Hong Kong.  He had treated the Mother at his former clinic since around 2000 until 2009.  The Mother resumed consulting the doctor once or twice a week ever since he has opened his new clinic in about 2012.  Sometimes the doctor would see the Mother at the Property.  That became normally the case since 2014 when the Mother no longer went to his clinic.  His evidence was not seriously challenged at the trial.

50.  Madam Poon Suk Han (“Poon”) was a volunteer worker at Dr Ng’s the new clinic since its opening in about 2012.  She was on duty on the two days of a week when the Mother normally came.  Hence the opportunity for her and the Mother to become acquainted.  Sometimes, Poon would visit the Mother at the Property.  She would help mending the garments treasured by the Mother, which she gathered were gifts from the Father and the Son.  The two also participated in charity events and activities together. Poon was an impressive elderly whose evidence was not seriously challenged either.

51.  Mr Tong Kwok Chung (“Tong”) is the Head of Fund-raising Division of TWGH.  His evidence was short and straightforward.  Tong confirmed in his evidence that according to record, Wai served as one of the directors of TWGH for 1958/1959, and TWGH has no standing mechanism or policy of acknowledging or recognizing past directors for procuring donation to it. Not only was his evidence beyond challenge, but there was also no other evidence tending to suggest that Wai would in any other material manner benefit from the disposition in favour of TWGH under the 2013 Will.  The contrary suggestion in this respect made by Rina in her pleading, I find, was just groundless.

52.  R Chan, legal executive and now head of the probate division of PWKW mentioned above, gave evidence.  The evidence of R Chan and W Wong of the firm will be visited in detail in considering the process of the making of the 2013 Will below.

MEDICAL EXPERT EVIDENCE

53.  The parties have adduced the neurological and psychiatric expert evidence.

54.  For neurological expert evidence, Dr Brian Choa (“Dr Choa”) produced his expert report dated 31 May 2018 and supplemental expert report dated 6 September 2018.  Dr Edmund KW Woo (“Dr Woo”) produced his expert report dated 19 June 2018.  The two experts then produced their joint report dated 20 November 2018 and supplemental joint report dated 15 March 2021.  Their expert reports were admitted without oral evidence at the trial.

55.  For psychiatric expert evidence, Rina has instructed Dr Benjamin Lai (“Dr Lai”), who produced his expert report dated 4 August 2018 and supplemental expert report dated 10 October 2018.  TWGH has instructed Dr Char-Nie Chen (“Dr Chen”), who produced his expert report dated 18 July 2018.  The two experts subsequently produced their joint report dated 22 February 2019 and supplemental joint report dated 19 June 2021.  The psychiatric experts attended the trial for cross examination.

56.  As to how the court should approach the medical expert evidence in litigation like the present one, the caution administered by the court in the decided cases cited above refers.

THE MOTHER

57.  There is no real dispute that the Son was very close and filial to the Mother during the latter’s lifetime.  That was also, if not more, the case after the passing of the Father in 2006.  The two had each other’s company residing at the Property at all material times.

58.  However, much is debated about the relationship between the Mother and Rina.  Rina was married in her early 20s, and has since had her own family.  She admittedly spent her time half in the USA, specifically Hawaii where Jason was, and half in Hong Kong.  Rina spent relatively more time in the USA in the years leading up to the Mother’s death.  Whilst she accepted in her evidence that she and the Mother were not close, she disputes the extent of their distant or even bad relationship suggested by TWGH.

59.  Resolution of the dispute in respect of the mother-daughter relationship would entail the assessment of the credibility of the witnesses, including Rina.  The precise state of their relationship aside, the indisputable fact was that the Mother made the 1996 Will bequeathing the bulk of her estate, including her share of the estate of the Father under the Father’s Will, to the Son and the balance of it to her grandson, Jason.  The Mother for her reason did exclude Rina from inheriting her estate in 1996. With the retraction of her original denial, and hence now common ground, Rina accepts that that was the true testamentary intention of the Mother back in 1996 and since.

60.  Subject to proof of its due execution, the 2013 Will is under attack by Rina, according to her pleaded case, for it was irrational in that it failed to provide for her as the sole surviving daughter.  However, in view of the undisputed testamentary intention of the Mother manifested by the 1996 Will, the exclusion of Rina from inheriting the Mother under the 2013 Will was on its face more consistent than irrational on the Mother’s part.

61.  It is never Rina’s case or, as will be discussed below, the evidence on her behalf that the Mother had somehow changed her mind regarding Rina’s inheritance from her since either the 1996 Will or the passing of the Son.  Rina points to no scenario of the Mother ever indicating intention to revoke the 1996 Will during her lifetime other than by making the 2013 Will.  The fact, and so admitted by Rina, was that she knew of neither the existence of the 1996 Will before the present action nor the making of the 2013 Will before the death of the Mother.  In the circumstances, insofar as the testamentary intention of the Mother is concerned, what Rina contests is more about the Mother’s intention to benefit Lung and TWGH, or charity in general, than that to exclude her by the dispositions under the 2013 Will.

62.  In line with the principles set out above, the court is to find whether the dispositions under the 2013 Will manifests the true testamentary intention of the Mother when it was made.  The answer does not hinge upon whether it may make better sense out of the situation as of now where the Son has passed and Rina is the sole surviving child of the Mother. This forms a significant dimension of the overview of what this action is, and could be, about.

63.  There is abundant evidence to suggest that the Mother was religious and perceived various daily life matters very much her own way.  One may view her take on religious practice and mode of daily life as eccentric in her own way.  Yet what should be noted is that all those were very much within her command.

64.  The Mother apparently believed in Buddhism, and was a member of the Hong Kong Buddhist Association since at least 1970s.  She had a Dharma name龍衍雲 (or Lung Hin Wan), which was also the name she used for registering as a patient in Dr Ng’s clinic record.  Both Wai and Poon testified in respect of the Mother’s participation in activities such as Buddhist vegetarian meal gatherings.  Poon recalled the recent one which she and the Mother joined before the Lunar New Year of 2013.  Wai recalled that the Mother had bought places for blessing by the monks at Miu Fat Buddhist Monastery for herself and the Son.

65.  Those who had known the Mother and her family long enough should know the importance of the placement of ancestral tablets and their worshipping at the Property to the Mother.  Chow said that, and so did Wong observe as a domestic helper.  Wong testified as to the Mother’s instruction to prepare and to serve daily family meals at the Property even for the passed ones such as the Father and subsequently the Son as well.  Maintaining such practice was so important as to form one of the instructions given by the Mother to Wong during the former’s last days in life.  Wong also testified as to the Mother’s litany reading habit during the day.

66.  The Mother also perceived various daily matters her own way.  For instance, she was said to have been adamant about avoidance of what she perceived as radioactive objects and materials.  She had certain extent of scepticism about western medicine.  She was particular about religious practice and ancestral worship.  She was adamant about matters in respect of which she had formed her view.  She was very much in a position to command that.  The evidence shows that the Son was filial and would allow that.  The evidence shows no instance of Rina having ever managed to alter the Mother’s way either.

67.  Rina sought to understate the Mother’s religious belief.  She categorized the Mother as no more than superstitious.  However, I find that Rina was far from forthcoming in acknowledging the Mother’s membership, at least in the 1970s, at the Buddhist association mentioned above.  At one point, she denied knowledge as the Mother had kept that from her.  At another point, she somehow uttered that the Mother had forgotten about her membership and stopped paying for membership subscription for over a decade.  In any event, whilst it may be Rina’s liberty to be judgmental about her mother’s conviction in religion or belief, that the Mother practised such religion and acted according to such belief in the aforesaid manner, I find, was the fact.  It was equally the fact that the Mother made the conscious decision to bury family members in accordance with Buddhist ceremony.  The family members were buried at no other than the Chai Wan Buddhist Cemetery (“the Cemetery”).

68.  Frequency and scale aside, that the Mother would participate in activities organised by charities at least during the few years before her death was also the fact.  Poon testified as to the Mother’s participation in the fundraising walk at Mount Austin Playground at the Peak organized by the Hong Kong Chiropractic College Foundation (“HKCCF”) for the World Spine Day in October 2012.  The Mother also attended HKCCF’s charity dinner in May 2013.  According to Dr Ng, the Mother would ask him about his charity and its funding need every now and then.  In early 2014, the Mother actually donated HK$1 million to HKCCF.  The witnesses had something more relevant to say about these events attended by the Mother, which will be referred to below.

69.  The Mother is known to have been fond of animals such as monkeys and birds as well as feeding them.  The Mother went so far as obtaining for herself a special permit issued by the Agriculture, Fisheries and Conservation Department for feeding monkeys.  Wong also testified to the Mother’s habit of feeding monkeys.  The Mother’s habit of feeding birds by the side of the carpark at the Property was known to Wong and also Poon.

70.  These features of the Mother’s character and daily life habits are relevant to the holistic assessment of her testamentary intention under the 2013 Will.  It is readily apparent that Rina realized that as well.  Hence her questioning of the Mother’s religious belief, as mentioned above, and perception about charity.

THE MOTHER-DAUGHTER RELATIONSHIP

71.  The relevance of the mother-daughter relationship in the present case is obvious.  Rina admitted that they were not close.  She admitted that she would not be informed of major matters concerning the Mother even during the lifetime of the Father.  When the Father passed away, Rina, who was largely in the USA, played no real part in making arrangement for the administration of his estate.  Nor was she informed of the making of the 1996 Will at all or the 2013 Will by the Mother beforehand. Importantly, she was consistently excluded from inheriting her under both wills.

72.  From different sources and to different degrees, various family members reckoned that the mother-daughter relationship was no better, if not worse.  S Chan testified as to what he had learned from the Mother and Long about the Mother’s poor relationship with Rina.  That included at one point when the Mother is said to have posted a notice in the newspaper to renounce the mother-daughter relationship.  Lung testified as to similar understanding in respect of the state of the mother-daughter relationship.

73.  Insofar as non-family members are concerned, Wai testified as to the Mother’s once description to him of the mother-daughter relationship as in a state of “擘網巾”, which is reminiscent of a scene of complete breakdown in relationship originated from the Cantonese opera.  Dr Ng testified as to hearing the Mother on several occasions describing the poor mother-daughter relationship.  Poon testified as to learning from the Son that mention of Rina in front of the Mother had to be avoided.  Likewise, R Chan had heard from the Son that the Mother preferred not to meet Rina, and therefore requested R Chan to arrange that the two would not be present together in the same meeting.  That was the occasion when meeting was held at the office of PWKW in connection with the administration of the Father’s estate.  Rina admitted that the Mother and the Son were in one meeting room whereas Rina was in another.  According to her, the arrangement was made to suit her in the room with air-conditioning and to suit the Mother in the room without air-conditioning. Further, the Mother and the Son were said to have had more documents to deal with on the occasion.  Such explanation objectively is not appealing.  That certainly does not fairly extend to explain her admittedly leaving without waiting or even greeting the Mother and the Son.  Somehow Rina explained that they were not accustomed to such kind of greeting.

74.  Notwithstanding the undisputed close relationship between the Mother and the Son, and whilst Rina claims to be close to her brother, the fact was that she did not return to Hong Kong to attend her brother’s funeral.  According to Rina, the Mother had through Chow asked her to return, but she refused and hanged up the telephone.

75.  Rina tried to counter by illustrating that the mother-daughter relationship was not as poor as that portrayed by the defence. At some point, she suggested that the Mother in fact appreciated her concern and loved her.  The single, and according to her the best, illustration she managed to recite was the Mother’s request for her assistance to attend to suspected gas leakage at the Property sometime in October 2013.  It transpired that in that connection, what the Mother did was instructing Wong to write to Rina’s husband to alert her, who was referred to by her full name in the note.  As counsel described, dictating the note to alert Rina in such manner by the Mother hardly aligned with what one may normally expect to happen in an open and ordinary, let alone close, mother-daughter relationship.  In her evidence in court, Rina gave further details of the incident, but only to bring about attribution of responsibility to her legal representatives for the lack of mention of such details in her witness statements.

76.  Much was also said about Rina’s conduct after the death of the Mother that cast light on her degree of affection and attitude towards the Mother in reality.  In June 2014, R Chan informed Wai of the death of the Mother, and a meeting was proposed.  Rina declined the repeated invitations of R Chan to meet to discuss matters concerning, amongst other things, the Mother’s funeral burial arrangement.  On 3 July 2014, Wai and Lung as well as R Chan, W Wong and Mr Frederick Tai (“Tai”) of PWKW met at the latter’s office.  Chow also attended as Jason’s representative.  Rina’s denial of receipt of such invitations to meet is contradicted by the record of them in the relevant attendance notes of PWKW.

77.  Rina is also said to have refused to participate in retrieving the body of the Mother from the hospital for the funeral arrangement.  Her attributing that to Lung’s domination of the arrangement caused the latter to deny the accusation, stating that one would have avoided such kind of task if one could.  Wai corroborated Lung’s evidence.  Lung was also adamant about Rina’s indication to him on the telephone that she did not want her name to be printed in the Mother’s obituary, at which he was surprised. Eventually the obituary was issued in the name of the Hui family.  Despite various but really minor matters raised in cross examination of Lung, the fact remained that he was heavily involved in the funeral arrangement and the payment of incidental expenses amounting to some millions.  Lung did so not without complaint that Rina could have been more co-operative.

78.  Rina admittedly did not attend the funeral service of the Mother.  At one point, Rina denied knowledge about the date of the funeral service, but Wong’s evidence contradicted that. Her evidence in this respect was problematic.  Her explanation for her absence, corroborated by Chow, was that it was the feng shui master’s advice that her presence would somehow constitute “相剋” (transliterally, clash) with the Mother on the date of the funeral.  She was unable to give details except for the information allegedly coming from a man.

79.  There is no real dispute that the feng shui master in question was Master Choi Pak Lai (蔡伯勵) (“Master Choi”), apparently a renowned master in the field in Hong Kong.  One is sceptical about the truth of the explanation whereby the so-called clash would stand in the way of the presence of the only surviving child of the deceased at the latter’s funeral.  Even assuming that that could happen, one is sceptical about how the feng shui master in question engaged would have picked the date of the funeral service resulting in such so-called clash.  Lung did not recall such prohibition against Rina’s presence administered by the master then as a matter of fact. According to Rina, she did attend to arranging joss paper for the service and assembling the Mother’s clothes and chattels to accompany the Mother for the burial.  If the restriction against her presence at the service did not prevent such involvement and conduct, one wonders why Rina admittedly did not even send her wreath.

80.  All the circumstances come together to cause this court to consider what Rina did and did not do after the passing of the Mother were simply and entirely matters of her own decision.  For what she did not do, which one may normally expect a daughter would have done, she is making excuse now to dispel any adverse inference in respect of her relationship with the Mother during the latter’s lifetime.  This court finds as a matter of fact and inference that any portrait of the relationship between the Mother and Rina during the former’s lifetime as a normal one, not to mention a good one, is most doubtful.  Against such background, that the Mother would, as she did, consciously and consistently exclude Rina from inheriting her, in my judgment, does not incite surprise.

BEFORE THE ENGAGEMENT OF PWKW

81.  There is no contention or evidence suggesting that the idea of making the 2013 Will originated other than from the Mother herself.

82.  The Mother had made the 1996 Will which, as a matter of common ground, manifested her then testamentary intention.  As mentioned, there is no contention or evidence suggesting that she had since changed her mind about that.  There came the passing of the Son on 27 May 2013 which for the purpose of the 1996 Will was premature.  The Mother apparently informed S Chan of the sad news and invited him to visit her at the Property for discussion.  S Chan recalled such telephone call from the Mother, and Wong also recalled such event.  During S Chan’s visit, the Mother indicated the idea of making a will as soon as possible.  According to S Chan, the Mother mentioned her intention not to let her estate go to Rina, and that to donate her estate to charity instead.  There was discussion in respect of how to go about the making of the will which, as S Chan suggested, was resolved to be a formal matter only suitable for engaging a law firm to do.  S Chan was asked if he could be the executor of her will, but he declined, feeling reluctant to take on what he anticipated to be a role of tedious nature in the light of the past experience with the estate of Long, his godmother.  However, S Chan agreed to accompany her to visit the law firm for her purpose.

83.  According to Lung, he also received a telephone call from the Mother soon after the Son’s death whereby she informed him of her intention to change her will and asked for the contact details of PWKW.  As mentioned, PWKW was also responsible for preparing the Father’s will.  Lung provided the Mother with PWKW’s contact number and office address.  He further enquired, but the Mother did not ask him to accompany her to PWKW.

84.  The circumstances surrounding how Wai came to be the one eventually named as the executor in the 2013 Will are in much dispute.  As mentioned above, that had to do with the Mother’s visit to the Cemetery in about late May or early June 2013 for viewing the burial sites of the Father and the Son.  The Mother made the arrangement.  For that, the Mother made telephone calls to various persons, including Wai, Chow and Master Choi.  Wong confirmed in her evidence that the Mother asked for these persons to be contacted, and she dialled the telephone for the Mother.

85.  According to Wai, the Mother informed him of the passing of the Son, and that a burial site for the Son at the Cemetery had been arranged.  The Mother invited Wai to accompany her to visit the site, and he agreed.  As to Master Choi, he was engaged for obvious purpose.  After the visit, the party proceeded back to the Property with the Mother.

86.  There is dispute as to how the visit to the Cemetery proceeded on the day in question.  Details such as which seat was taken by which participant inside Wai’s car to the Cemetery and whether the Mother actually managed to walk between the burial sites for the Father and the Son were raised and disputed.  The former detail was raised for the obvious purpose of discrediting Wai’s evidence that the Mother mentioned to him during the ride her intention to appoint him as the executor of her new will.  As mentioned, she had by then asked S Chan who declined to take up the role.  The latter detail was raised at most for general credibility.  The same may be said about the dispute as to the other details such as what the Mother and the persons did inside the Property after return from the Cemetery on that day.

87.  Counsel for TWGH, in my judgment, makes a fair observation.  The dispute over the above details aside, what could not be questioned is that these persons concerned came to be involved in the visit to the Cemetery as a result of the Mother’s initiative and invitation.  To the extent which is really relevant for the present purpose, the fact that Wai would be the executor under the new will of the Mother being known by the Mother and Wai is verifiable by the events subsequent to that visit.  That leads one to the various meetings at the office of PWKW in June 2013.

ENGAGEMENT OF PWKW

88.  As mentioned, Lung had provided the Mother at her request the contact information of PWKW during their telephone conversation shortly after the passing of the Son.  According to R Chan, she received in her office a telephone call from the Mother days before 13 June 2013.  She was informed of the passing of the Son.  The Mother intended to make a new will and to instruct PWKW to handle the administration of the Son’s estate.  A meeting was therefore scheduled for 13 June 2013.

Meeting on 13 June 2013

89.  On 13 June 2013, the Mother, Wai and S Chan attended the meeting with R Chan at PWKW’s office (“the First Meeting”).  Wong accompanied the Mother there, but admittedly stayed outside the conference room and was not present in the actual meeting.

90.  According to R Chan, she explained the purpose of the First Meeting being that to obtain further instructions regarding the Mother’s wish for the new will and the arrangement regarding the Son’s death.  Indeed, the Mother had brought along the 1996 Will and showed it to R Chan during the Meeting.  The Mother explained that the Son had passed away and she needed to make a new will.  The Mother indicated her wish to donate her estate to charity.  R Chan advised the Mother to consider the mission of the charity in deciding on her choice, in respect of which the Mother indicated she would further deliberate.  The Mother also introduced Wai as someone known by her family had agreed to take up the role as the executor of her new will.  R Chan had Wai’s confirmation during the meeting.

91.  As for the arrangement concerning the Son’s passing, the Mother gave instruction to PWKW to write to the Queen Mary Hospital to apply for the certificate of death information of the Son.  The Mother also instructed PWKW to handle the application for the grant of administration of the estate of the Son.  These resulted in the authorization letter dated 13 June 2013 in Chinese setting out the Mother’s instructions, which the Mother confirmed by signing at the meeting.

92.  The above was recorded in an attendance note of PWKW in respect of the meeting.  According to R Chan and S Chan, the conversation during the First Meeting also covered other matters.  They included the Mother’s enquiry whether S Chan should be appointed as co-executor of her estate, but the idea was dropped upon Wai’s indication that he saw no such need.  The Mother also mentioned about “donation to the monkeys”, but R Chan suggested that the animal was supposed to be taken care of by the Government.  S Chan also raised if a doctor should be arranged to examine the Mother and to certify her capacity to make the new will in order to avoid future challenge, but the idea was dropped in the light of views that all present would bear witness of the process.  As far as R Chan recalled, that was expressed by Wai.  The attendance note was challenged for the lack of record of discussion of these other matters.  However, it must be right that attendance note is not meant or required to be a verbatim record of the conversation.  The key is relevance and necessity which depend on the circumstances.

93.  The material dispute raised by Rina in respect of what happened during the First Meeting will be referred to below.  However, the above account shows that the Mother took her initiative and attended the First Meeting prepared with the relevant document (ie the 1996 Will). The Mother actively engaged the others in conversation in the meeting.  She was not passive or appeared to be dictated by others along the way.  That resulted in the instructions which were recorded by R Chan and indeed leading to her action, which was documented and undisputed.

Meeting on 19 June 2013

94.  According to R Chan, she followed up by a telephone call to the Mother after the First Meeting.  A second meeting was fixed on 19 June 2013.  Amongst other things, R Chan advised the Mother to bring along proof of address for the meeting.

95.  On 19 June 2013, the Mother attended the meeting at PWKW’s office with S Chan (“the Second Meeting”).  Wong accompanied her, but waited outside the conference room as before.  As requested, the Mother brought along and provided R Chan with documentary proof of her address.  The Mother also mentioned about the preparation for the Son’s funeral and the application to the hospital to retrieve his body.  She produced a certificate of order authorizing burial dated 30 May 2013 and a body collection form of the hospital dated 18 June 2013.  Apparently it was the Mother who signed that form. These documents were certified as true copies by Tai of PWKW on the same day.

96.  At the meeting, the parties also agreed on the professional fees quoted by PWKW, which were HK$10,000 for preparing the new will and HK$30,000 on account for the application for letters of administration of the estate of the Son.  R Chan recorded the Mother’s instructions for the new will, being her burial and funeral to be conducted in Buddhist ceremony; bequest of HK$20 million to Jason; bequest of the Property and the rest of her estate to TWGH for charitable purposes.  As already instructed, Wai would be the executor.  Such record was set out in R Chan’s attendance note.

After the Second Meeting

97.  After the Second Meeting, R Chan followed up by 2 telephone calls on the same day.  The first one was made to Wai at around 3:33 pm whereby she obtained his Hong Kong identity card number.  The second one was received from the Mother at around 6:15 pm whereby the Mother communicated to R Chan the former’s change of instruction regarding her intended bequest to Jason from HK$20 million to HK$10 million.  According to R Chan, the Mother’s instruction was very clearly communicated to her.

98.  Pursuant to the Mother’s instruction, R Chan proceeded to prepare the draft will on 19 June 2013.  W Wong then put his written comments on the draft.  A draft engrossed will of the Mother resulted.

Meeting on 21 June 2013

99.  On 21 June 2013, the Mother and S Chan met with R Chan again at PWKW’s office (“the Third Meeting”).

100.  According to R Chan, the draft engrossed will was explained clause by clause in Cantonese to the Mother, and the Mother signified her approval along the way. When asked about the bequest of the Property, the Mother confirmed that only she and the domestic helpers were occupying it.  Upon the Mother’s enquiry as to whether the will could specify that TWGH had to maintain the Property for the worship of her family ancestors and Buddhism, R Chan consulted W Wong.  W Wong joined the meeting at that point, and advised that TWGH might not be prepared to accept such condition and the Property might also be subject to redevelopment one day in the future.  The Mother indicated that she understood and would like to think about it.  What happened next was in specific dispute.

101.  According to R Chan, the Mother at that point requested to contact Lung.  She managed to talk to Lung on the telephone in the conference room.  She referred to the advice just given by W Wong and asked if Lung would be prepared to agree to take up the Property instead and to maintain the same so that the purposes mentioned above could be served.  The Mother also mentioned a bequest of HK$10 million to Lung in that case to enable him to pay for the outgoings of the Property.  Lung confirmed that in his evidence.  He also confirmed that at the Mother’s request, he provided his full name and HKID number, and S Chan, as he confirmed in his evidence, wrote them down on a piece of paper for PWKW.  Pursuant to that, the Mother changed her previous instruction so that the Property would be bequeathed to Lung together with a sum of HK$10 million.

102.  The specific dispute raised by Rina relates to when the above telephone conversation between the Mother and Lung at PWKW’s office took place.  Rina contends that that happened during the First Meeting instead of the Third Meeting.  Such contention is essentially based on the evidence of Wong.  As mentioned, whilst Wong accompanied the Mother to those meetings at PWKW’s office, she waited outside the conference room and was not present at the meetings every time.  There is no dispute about that.  Nor is there dispute that on that occasion when the Mother sought to speak to Lung, it was Wong who brought the cell phone to the Mother for such purpose.  However, in respect of how exactly that happened, Wong first stated that the Mother walked out of the conference room to ask her for making the telephone call, but subsequently corrected herself, and rightly, that it was in fact S Chan who came out to ask Wong for that.  Wong then entered the conference room, dialling the number for Lung and passing the cell phone to the Mother.

103.  Argument about the significance of the correction mentioned above aside, Wong’s version of the episode happening during the First Meeting instead of the Third Meeting, in my judgment, is flatly contradicted by the indisputable circumstantial evidence.  Wong’s recollection in this respect was contradicted by the evidence of R Chan and S Chan.  The episode happened when W Wong was present, which happened only at the Third Meeting.  Importantly, had the episode taken place during the First Meeting, there would have been no reason why the instruction recorded in the attendance note of the Second Meeting was still the intended bequest of the Property to TWGH without mention of Lung. Nor would there have been reason why R Chan proceeded to prepare the draft will in accordance with such instruction, if that was in fact no longer the instruction.  As mentioned, W Wong proceeded to put his written comments on the draft will, resulting in the draft engrossed will tabled at the Third Meeting.  The revised draft will and confirmation of instruction which followed and signed by the Mother during the Third Meeting also could not be explained, if Wong’s version is correct.

104.  According to R Chan, the revised draft will and confirmation of instruction approved by W Wong were explained in Cantonese to the Mother before she appended her signature on them in their presence.  The originals of the documents signed were then handed to the Mother, who further signed a receipt there and then.

105.  At the request of the Mother, R Chan also issued PWKW’s bill for their professional costs.  Worth noting is that the Mother also came prepared with her cheque book.  If Wong could at best say that that should be the case on that day, that means the Mother realized and remembered the need to bring along the cheque book without Wong’s reminder or assistance.  The Mother signed a cheque for a sum of HK$10,125 for the making of the 2013 Will and another cheque for a sum of HK$30,000 for costs on account of her application for grant of letters of administration of the Son’s estate.  Wong’s attempt to somehow understate the Mother’s understanding of what she was doing with the cheques was simply unfair and untrue.

VALIDITY OF THE 2013 WILL

Due execution

106.  No real challenge was mounted at the trial against the formal execution of the 2013 Will insofar as compliance with the Wills Ordinance is concerned.

Rationality of the terms

107.  Rationality falls to be considered in respect of (i) the choice of executor; (ii) the bequests; and (iii) the other terms.

108.  The picture portrayed by Rina is that Wai came to be involved out of the blue.  However, as discussed, the evidence suggests that he was known by both the Father and the Mother.  That Rina may know not much about that, in my judgment, is not surprising in view of the extent of her physical presence in Hong Kong and her own relationship with the Mother during the latter’s lifetime.  I am not impressed that Rina is in fact in a better position than Wai himself to testify as to his acquaintance with the Father and the Mother.  As to Wong, she was not in a position to question the approach to Wai either, given that she had commenced her employment at the Property for just 2 months by then.  That said, Wai never sought to suggest that he and the Mother were particularly close or that they maintained frequent or regular contact.  His evidence sounded fair.  In court, Rina had to accept that she would not consider Wai a complete stranger to the Mother.

109.  If one demands to know what it was about Wai that the Mother considered in naming him as the executor of the 2013 Will, one would be asking the wrong question.  The original intention of the Mother was to have the Son as the executor of the 1996 Will whereby he would have been the beneficiary of the bulk of her estate.  That failed, and hence the intention to make a new will.  The Mother asked S Chan who refused to act as the executor of the new will.  Wai was not the first choice.  However, Rina was never ever the choice.  While the Mother took the initiative to make the new will and eventually to enrol the consent of Wai to act as the executor, that it was her intention should be clear more in terms of manifestation than justification as such.  There is nothing irrational about such choice.

110.  The bequest of cash to Jason is consistent with the Mother’s intention as manifested by the 1996 Will.  Her bequest to Jason was 10% of her estate under the 1996 Will.  There is no evidence in respect of the value of her estate.  That said, any comparison between the value of 10% of her estate and the sum of HK$10 million, in my judgment, would not cast light on the rationality of such bequest under the 2013 Will.  First, the circumstances indeed changed materially upon the premature death of the Son.  The intention to bequeath the Property to the Son under the 1996 Will failed.  The bequest of the Property now to Lung together with a sum of HK$10 million by the new will was new.  All these were apparently associated with what the Mother had in mind about the maintenance of the Property.  Second, the Mother was conscious about the amount to be bequeathed to Jason.  Her original instruction to PWKW during the Second Meeting was to bequeath a sum of HK$20 million to Jason.  She changed her instruction after the meeting by devising the bequest of the Property and a sum of HK$10 million to Lung as well as reducing the amount of the pecuniary bequest to Jason to HK$10 million.  It was her initiative.  As R Chan confirmed, the Mother’s such instruction to her was clear.

111.  The bequests to Lung and TWGH were new in the sense that they did not exist in the 1996 Will.

112.  First and foremost, Lung is a family member.  He entered the picture entirely as a result of the approach by the Mother at her initiative.  That came about after the passing of the Son which, as mentioned, rendered her bequest of the Property to the Son under the 1996 Will a known failure. Lung was approached for the specific purpose of taking up the Property so that ancestral worship could be retained there.  The additional sum of HK$10 million for Lung also came about.

113.  Indeed, the terms of the bequest to Lung under the 2013 Will does not spell out the specific motive of the Mother mentioned above.  However, there is a material difference between the expression of wish by the Mother in respect of certain task which she requested Lung to undertake at the Property and the instruction of hers to actually place the Property with Lung as mere trustee to use or deal with the same for a specific purpose.  Unlike the latter, the former does not serve to detract the beneficial interest in the Property bequeathed to Lung.

114.  In his evidence, Lung confirmed the expression of such wish by the Mother, which he agreed to undertake, over their telephone conversation.  That said, he would have turned down the bequest had that been proposed on the basis of imposition of the Property on him with conditions.  Unless there is reason to believe that the Mother did not accept the terms of such bequest in the 2013 Will eventually set out and signed (which will be discussed below), the bequest was no different from an absolute gift, albeit against the backdrop of the Mother’s trust in Lung in respect of the specific request.  Counsel for TWGH refer to Lung’s participation in the various respects of the funeral arrangement of the Mother as testimony of his trustworthiness.  Whilst that may speak for itself, I do not consider it necessary to view whether the Mother was right in placing trust in him effectively with hindsight.

115.  It is also questionable whether entrusting the Property to Lung in the form of a trust for the specific request mentioned by the Mother to Lung would have been enforceable when the same could hardly be categorised as charitable in nature: see Lewin on Trusts (20^th ed) at §5-053; this court’s discussion in Yeung, Abraham v Sun King Kai [2022] HKCFI 1239; Sun King Kai v Colleen Chen & Anor [2023] HKCFI 3046.

116.  Similar to the bequest of the Property, the intention to leave the bulk of the Mother’s residuary estate to the Son was known to fail upon the premature death of the Son.  The idea of donation came about.  The evidence shows that it was the Mother’s initiative.  Further, the decision to donate to a charity was finalised not without prior suggestions also at her initiative such as the idea of “donation to the monkeys”, which is proved to have been her favoured animal.  The idea of donation to a charity is hardly irrational, considering further the Mother’s participation in religious and charitable events as well as her substantial donation, albeit not regularly or frequently, during her lifetime.  As discussed, I also reject the suggestion of Chow that the Mother’s decision to donate her estate consisting of the Father’s money was irrational.  The suggestion merely reflects Chow’s subjective perception of what fair distribution of the family’s wealth ought to have been.

117.  As discussed under the overview above, now that it is common ground that the Mother by the 1996 Will disinherited Rina, that the same is maintained by the 2013 Will could only be consistent manifestation of the Mother’s intention.  The pleaded contention of Rina questioning the lack of provision by the Mother for her in the 2013 Will does not afford her with the real basis for condemning the will as irrational.  As mentioned, it is never contended that the Mother had somehow changed her mind about Rina’s inheritance from her since the 1996 Will or after the death of the Son.

118.  There is no contention or evidence for questioning the choice of charitable organisation for the donation.  Whilst there is indeed no evidence of the Mother’s preference of TWGH during her lifetime, TWGH would have been one of the most well-known established charitable organisations to people generally.  As discussed, the alleged association between Wai and the choice of this charitable organisation pleaded by Rina is farfetched.  In view of the evidence of Wai and Tong, which was hardly shaken, the contention is conjecture without any objective evidential basis.  According to R Chan, the Mother was advised to consider for herself the object and mission of the charity intended for the bequest.  There is hardly anything irrational about the choice of TWGH objectively.

119.  The only other term is really the specification for the funeral ceremony.  In view of the religious belief of the Mother, that the 2013 Will would specify her funeral to be conducted by way of Buddhist ceremony ought to surprise no one.

The “Golden Rule” not followed

120.  Not unexpectedly, much was said during the cross examination of W Wong and R Chan as to their lack of arrangement for the medical examination of the Mother and hence certification of her testamentary capacity prior to the execution of the 2013 Will as the “Golden Rule” suggests.  As discussed, the rule does not operate by raising any presumption against the existence of testamentary intention.  Nor does the rule operate by depriving the solicitors of their professional judgment exercisable in the circumstances.  In the present case, it was not without objective basis for the solicitors to form their view not to defer their judgment to certification by medical practitioners.

121.  The background, character and predisposition of the testator discernible during his or her lifetime are relevant to properly understand what could or could not be the intention by the testator.  So is the actual conduct of the testator in bringing about the making of the will as apparent to the lawyers.  Except for the old age of the Mother, the circumstances of the present case prevailing by the time of the 2013 Will were remarkably different from the cases where the court has held that the solicitors were reasonably expected to have suspected and considered deferring their judgment to medical certification in respect of the testator’s capacity.  From the outset, it was the Mother who took the initiative and contacted the various parties involved, including PWKW, for the purpose of making a new will soon after the death of the Son.  The Mother first liaised with R Chan on the telephone before the First Meeting was arranged at PWKW’s office.  It was the Mother who cared to bring along the 1996 Will to the First Meeting, which reflects that she had its terms in mind when giving instruction for a new will to be made.  The Mother herself gave instruction in respect of the specific bequests and managed to ask for advice at her own volition.  The rationality of the bequests discussed above refers, including the clearly consistent intention to exclude Rina from inheriting her.  The Mother managed to act in accordance with R Chan’s advice to bring further documents to the Second Meeting.  She telephoned R Chan after the Second Meeting during which she changed her instruction given in respect of the pecuniary bequest to Jason.  She managed to handle the query concerning disposition of the Property, which caused her to take the initiative to contact Lung in the course of the Third Meeting.  In the Third Meeting, W Wong specifically explained to the Mother that the 2013 Will would take effect upon her death, and she could make changes to the terms at any time.

122.  The holistic assessment tends to show that the circumstances prevailing prior to and at the time of the making of the 2013 Will apparent to the solicitors did not cause them concern about the mental capacity of the Mother and thus the need to defer their judgment and the entire matter until medical certification contemplated by “Golden Rule”.  That in my judgment was nothing short of being professional.

123.  Eventually, one still turns to consider whether the Banks v Goodfellow criteria are satisfied as a matter of fact.

Whether the Mother was capable of understanding what she was doing

124.  The objective facts mentioned above tend to suggest that the Mother was capable of understanding what she brought about, namely the making of the 2013 Will.

125.  The Mother was conscious of what she was doing, namely to make a new will in place of the 1996 Will in view of the premature passing of the Son.  So was she of the need to choose a new executor for the new will.  She was the one who approached PWKW.  She attended meetings at PWKW and gave instructions concerning the distribution of her estate which could be understood as the aftermath of the premature death of the Son and hence failure of the disposition intended under the 1996 Will.  It should also be noted that making a new will was not the only business for which the Mother engaged PWKW.  She also gave instruction to PWKW concerning the administration of the estate of the Son at the same time.  There is no allegation that she did not understand such instruction to PWKW.

126.  The Mother’s understanding of what she was doing was further manifested by the discussion and her instruction concerning the specific bequests during the consecutive meetings at PWKW’s office and also between meetings (ie the Second and the Third Meetings).  To begin with, the composition of her estate which needed to be set out in the new will was not complex.  The bequests by nature were not new as the same were covered under the undisputed 1996 Will.  Of the beneficiaries, Jason was already named under the 1996 Will, though the form of bequest was changed from 10% of her residuary estate to cash.  The really new aspects were the change of beneficiary of the bequest of the Property together with that of cash to Lung as well as the donation of the residuary estate to TWGH. These were originally dispositions under the 1996 Will which would fail due to the premature death of the Son.  In other words, not only was there no complexity in terms of the dispositions under the new will which might have caused concern about the Mother’s ability to understand what she was doing, but it was also perceivable why the Mother saw the need to do what she did by way of the new will.

127.  In the course of her instructions, the Mother reacted to the advice by the solicitors in respect of the feasibility of donation of the Property to TWGH with her concern about the maintenance of ancestral worship in mind, and hence her initiative in the middle of the Third Meeting to contact and to talk to Lung as the intended recipient of the Property to address such concern.  The bequest of cash to Lung came about at the same time.  That formed her instruction only after she herself had obtained confirmation from Lung on the telephone.

128.  As mentioned, donation of her residuary estate by the Mother to charity was neither inconceivable, in view of the substantial failure of her object under the 1996 Will as a result of the premature death of the Son, nor irrational in view of her character.  Further, choice of the donee hardly gives rise to concern about the Mother’s intention and understanding to make the donation.  If anything, TWGH is one of the most established and well-known charitable organisations in Hong Kong.

129.  Further, the Mother attended the meetings at the office of PWKW prepared.  This began with her bringing the 1996 Will at her initiative for the First Meeting.  She followed up by bringing further documents in accordance with the request of the solicitors.  This concluded with her bringing along her cheque book to the Third Meeting for the purpose of the necessary payment, including that of professional fees to the solicitors.  The query in this respect suggested by Wong in her evidence, in my judgment, was an unwarranted understatement of the Mother’s understanding and her ability to understand what she was doing.

130.  Wong testified to her observations about the Mother’s conduct and conversation with her subsequent to the making of the 2013 Will apparently to cast doubt on whether the Mother in fact realised or was certain about the dispositions of her estate by the will just made.  Some of the observations were mentioned only for the very first time despite her previous witness statements.  However, insofar as what transpired during the 3 meetings at the office of PWKW which led to the signing of the 2013 Will as discussed is concerned, Wong admittedly had no personal knowledge.  The same may be said about Rina.  In view of the then circumstances of the Mother, that she did not immediately cast out of her mind or that she would bring up for mention the subject of her testamentary dispositions even after the making of the 2013 Will, even if credible, must be understood in view of her age and character.  That in my judgment does not compromise the integrity of her instructions which led to her signing of the will.  Further, according to W Wong, which I accept, he indeed advised the Mother that the dispositions under the 2013 Will would take effect upon her death and therefore she might change them any time.  The fact was that she did not do so before she died.

Whether the Mother was capable of understanding the extent of her property being disposed of

131.  It was not the first time the Mother got to consider disposition of her property.  She did so by the 1996 Will, and there is no allegation that she did not then understand the extent of her property so disposed of.  As mentioned, she took the initiative to bring along that will to PWKW for the purpose of giving instruction for the new will to be made.

132.  Not much could really be said about the Mother’s understanding of her disposition of the Property, which also existed under the 1996 Will.  The Mother considered herself to be in the position to do so as the owner of the Property, and even Wong testified as to such assertion by the Mother during her lifetime. The difference when she made the 2013 Will lies in the beneficiary of the disposition of the Property.

133.  The bequests of cash were new.  The fact was that the Mother had the cash, which is verified by the bank balances stated in the schedule of assets annexed to the probate in respect of the 2013 Will. There is no reason to suspect that she somehow was not aware of that fact.

134.  The major query raised on behalf of Rina relates to the residuary estate of the Mother after the specific bequests of the Property and cash.  Essentially, it is argued that there is no evidence of the Mother realising the extent of her residuary estate net of these specific bequests.  W Wong was also cross-examined in respect of his failure to ascertain from the Mother the extent of such residuary estate and her knowledge about that, and therefore to advise the Mother on the significance of donation of such extent of her estate to the charity.

135.  In my judgment, counsel for TWGH is right that the second criterion under Banks v Goodfellow does not require proof of actual understanding of the exact details of his property at the time of execution of the will but is concerned with the mental capacity to do so: see Chiu Man Fu (CFI) (above) at §66 applying Hoff v Atherton [2004] EWCA Civ 1554 at §44.  No will is rendered invalid merely because a testator with the requisite capacity is mistaken about, or fails properly to ascertain, full details of his property: see Minns v Foster, Case No. HC 01C04769 (English High Court) at §115.  Further, the circumstances were not such that the terms were seen to be designed for the Mother to merely affirm so as to give rise to concern or reason for probing: see for instance Buckenham v Dickinson [2000] WTLR 1083, 1095G.

136.  Even assuming that the query raised on behalf of Rina is relevant, the answer would tend to be that the Mother was aware of the extent of her estate at the time of making of the 2013 Will as a matter of fact. There is no suggestion that the Mother was not aware of the extent of her estate when making the 1996 Will.  The difference at the time when she made the 2013 Will was that her estate also consisted of her entitlement to the Son’s estate.  That was a fact known to her, as she was instructing PWKW to apply for the administration of the Son’s estate at the same time of making the 2013 Will.  The query raised on behalf of Rina really goes to the monetary value of the residuary estate of the Mother after her specific bequests.  There is indeed no evidence of the Mother knowing the monetary value.  Nor did the solicitors enquire about that in taking instructions from the Mother for making the 2013 Will.  However, that in my judgment is immaterial in the circumstances of this case.

137.  The monetary value of the residuary estate of the Mother could be material if there is reason for suspecting that the value, if known to the Mother, would have had bearing on her intention and bequests under the 2013 Will.  However, at the time when the Mother made the 1996 Will, the bulk of her estate, including the Property, was bequeathed to the Son and the only other beneficiary Jason was given a minor share of 10%.  Notwithstanding her awareness that her estate at the time of making the 2013 Will would further consist of the Son’s estate as mentioned, the Mother consciously gave instruction to the solicitors for devising a cash bequest to Jason of HK$20 million, which was subsequently reduced to HK$10 million.  In other words, that the bequest to the only intended beneficiary other than the Son under the 1996 Will should remain a minor share of her estate was consciously and consistently maintained.  Neither the passing of the Son nor the consequential increment of the Mother’s estate known to the Mother caused her to change that.

138.  The Property, which was intended for the Son, was now bequeathed to Lung together with a cash bequest of HK$10 million under the 2013 Will.  There is no reason for suspecting that the Mother was not aware that the residuary part of her estate after these specific bequests would form the bulk of her estate.  By donating such bulk of her estate to charity, the Mother disinherited Rina from her.  That was also consistent with what the Mother did by the 1996 Will.  As discussed, there is no contention or evidence that the Mother had ever indicated any change of mind about that since the 1996 Will.  There is likewise no basis for suspecting that the Mother could have changed her mind about that at the time of making the 2013 Will if she had known the value of her donation instead of the mere fact that she was making the donation.

139.  In other words, it was the entirety of the bulk of her residuary estate after the specific bequests which the Mother would dispose of.  The manner of disposition, ie by charitable donation, might be new.  The intention of not letting that fall into inheritance unless by the Son and Jason was not.  The intention to disinherit Rina has all along been consistent.

140.  In the circumstances, there was nothing lacking in terms of discharge of professional duty on the part of the solicitors in not ascertaining the value of the bulk of the residuary estate which the Mother was donating and her awareness of that.  As W Wong aptly pointed out in his evidence, the dispositions intended by the Mother were not complex, and he was not impressed that the Mother did not realise the extent of her donation forming the bulk of her estate.  The solicitors were so instructed to prepare a will.  They had no reason for questioning the wisdom behind her express testamentary intention.  Nor were they instructed to advise on her estate planning.

Whether the Mother was able to comprehend and appreciate the claims to which she ought to give effect

141.  There was less than a handful of beneficiaries under the 2013 Will.  The Mother who named them as such at her initiative must be able to comprehend and appreciate their entitlements to which effect would have to be given.  The decision to donate the residuary estate to TWGH was reached only after the crude idea of “donation to the monkeys” and donation of the Property with condition attached to TWGH had been raised but ruled out during discussion with the solicitors.  Apart from the alleged association between Wai and TWGH, which is proved to be unfounded conjecture, Rina is never specific about her contention that the Mother was influenced by Wai and/or Lung or others into making the dispositions under the 2013 Will.  The possibility of the Mother having been whispered to and convinced into making the donation under the 2013 Will suggested by Chow in his evidence was unfounded conjecture too. As observed above, Chow demonstrated his own perception against the Mother’s donation of what he described as the Father’s hard earned money, and his evidence must be considered with caution.

142.  Insofar as Chow himself is concerned, the evidence suggests no basis for suspecting that he would have been envisaged as a candidate to benefit from any part of the Mother’s estate, despite his close relationship with the family.  He certainly was not under the 1996 Will.  Nor was he when the 2013 Will was made, notwithstanding the Mother’s involvement of him after the Son’s death.  He made no such contention either.

143.  Insofar as Rina as her child is concerned, the Mother’s exclusion of her from the inheritance was not new.  There is no reason for suspecting that she somehow was unable to appreciate that by consistently excluding her from the inheritance under the 2013 Will.

144.  The circumstances tend to suggest that the Mother was able to comprehend and appreciate the claims to which she ought to give effect.  The suggestion on behalf of Rina that the solicitors are expected to have probed into the existence of any other relatives or friends to whom the Mother might or should consider directing some of her bequests is without basis.

Whether the 2013 Will is the result of the Mother’s unsound mental capacity

145.  While the circumstances tend to suggest that the testator was capable of understanding and comprehending what he or she was doing which led to the will, the will nevertheless fails if it is proved as a matter of fact that first, the testator was at the material times suffering from mental incapacity, and second, the will and its terms were caused or tainted by such incapacity.

146.  The issue of mental capacity is a question of fact ultimately for this court to find, including by interpreting the circumstances according to the evidence accepted and drawing inferences.  Medical expert evidence is but part of the evidence in the assessment.  This is of particular importance in cases like the present one where the medical experts did not have the opportunity of examining the testator but had to consult the available medical records and interpret the witnesses’ accounts of the testator’s condition, conduct and behaviour during his or her lifetime.

147.  As to the witnesses’ accounts, Dr Ng had the opportunity of seeing and conversing with the Mother rather regularly after the death of the Son.  Whilst all the parties expected that the Mother would be in grief, Dr Ng described the Mother as still talkative and able to understand his recommendations.  He observed nothing abnormal which would have suggested deterioration of her condition and mind.  His observation about her during their interaction in the treatment sessions was similar.

148.  Poon testified as to her frequent meetings and conversation with the Mother during the couple of years before her death. Her impression was that the Mother was talkative and spoke like a logical and sound mind.  Poon also produced a video recording of the Mother’s attendance at the charity banquet of HKCCF on 18 May 2013, ie just a month before the First Meeting.  First the foremost, the fact that the Mother would care to attend has at least some indicative value of how she was taking her life circumstances at the time.  Further, the recording, albeit brief, shows that the Mother looked most presentable and socially engaged with the others during the event.  The Mother is also seen to be reactive in her own way to photo-shooting.  According to Poon, she did not observe deterioration in the Mother’s state during the opportunity of talking with the Mother even after the event.

149.  S Chan testified that the Mother acted, behaved and spoke normally, which did not cause him to doubt her mental state.  That was his observation at the time when she made the 2013 Will as well as the fortnight before her passing.  Lung testified as to the telephone conversation during the Third Meeting mentioned above, during which the Mother sounded completely normal and her articulation sounded clear and logical to him.

150.  As mentioned, Wong’s tenure as domestic helper and thus interaction with the Mother started just 3 months before the 2013 Will.  Wong’s observation about the Mother could be described as mixed.  On the one hand, she acknowledged, as mentioned, that it was the Mother who took the initiatives to contact the various persons eventually involved in the making of the 2013 Will.  She accepted that the Mother could communicate to and understand others, including giving clear instructions to her and the other helpers regarding not only the household but also matters concerning her death.  The examples which Wong gave included locating the burial site, reading litanies, contacting Master Choi and down to details such as preparing “lai see” (red packets) for workers.  The Mother was also said to manage to give her last instructions to her helpers by her bedside before her death, including asking Wong if she would stay at the Property and continue the symbolic serving of daily meals for her family mentioned above.  On the other hand, Wong was keen at highlighting what might impress people as inexplicable or abnormal behaviour of the Mother.  Examples included discarding belongings for fear of alleged radiation, throwing “holy cups” (in praying for spiritual guidance) and mentioning the Mount of Monkeys.  However, even assuming, as it is not exactly clear, the timing of these observations was around the making of the 2013 Will, I do not find them to be really inexplicable or abnormal as such.  This is where one must not lose sight of the peculiar character of the Mother during her lifetime.  As mentioned, she was known to be eccentric in her own way but very much in command of what about her and her family should or should not be done during her lifetime.  The alleged behaviour of the Mother as observed by Wong was in substance not too dissimilar to what might be expected of her as part of the Mother’s daily life.  In her evidence, Rina had to accept that. Further, even assuming that the alleged behaviour of the Mother was open to interpretation to the effect that she might feel uncertain after the making of the 2013 Will, that per se would not have been abnormal or called into doubt her mental capacity to make her decision leading to the will.  As found, the Mother had indeed been legally advised of her liberty to change the will prior to her death.

151.  As to legal advice, both R Chan and W Wong had the opportunities of making their own observation and in fact assessment of the state of the Mother during the entire instruction process, which concerned not only the making of the 2013 Will but also the administration of the estate of the Son.  So did they during the finalisation of the terms of the 2013 Will and its execution.  The above discussion in this respect refers.

Evidence of medical condition and treatment

152.  The Mother had consulted Dr Lam Kui Chun (“Dr Lam”), a specialist in gastroenterology and hepatology, since February 2000. There was record of diagnosis of atherosclerosis and early congestive heart failure of the Mother.  Regarding the Mother’s mental state, there was initial record of her being normal.  In his report 10 years later, Dr Lam noted that the Mother was said to be senile when she was admitted to the hospital at one point.  In his reports up to the following year, there was record of the Mother’s occasional lapse of memory, which was helped ease by reflexology and prescription of Exelon.  Exelon is an anti-dementia medication.  Between 2010 and early 2013, there was record of her claim of healing by divine power, scepticism and fear about the domestic helpers for harming her physically and financially.  Dr Lam suspected the existence of paraphrenia symptoms.  Paraphrenia, if diagnosed, is a psychiatric condition characterised by paranoid delusion and hallucinations.  In April 2013, there had also been a 10-day prescription of Diazepam, which is an anxiolytic medication.

153.  Notwithstanding the above, it should be noted that there was no actual diagnosis of dementia or paraphrenia.  Whilst Dr Lam prescribed medication with a view to addressing these possible concerns, he was not a psychiatrist.  Nor was there record of his recommendation or referral for the Mother’s consultation with a psychiatrist.  The prescription was kept at the lowest dosage up to the passing of the Mother, which was contrary to a case of diagnosed dementia where, according to Dr Chen, the dosage of Exelon would have been expected to increase with time after trial.  It is therefore not without basis for counsel for TWGH to suspect that Dr Lam might have viewed the prescription to serve preventive purpose.  Whether that was indeed the case or, if yes, whether that was correct cannot be answered in view of the fact that the doctor was to begin with not a psychiatrist.

154.  Since about mid-2013, including the time when the Son passed away, there had been record of the Mother’s vaginal bleeding condition.  However, the Mother had resisted consulting a gynaecologist.  On one occasion when the Mother was admitted to the hospital under the care of Dr Lam for vaginal bleeding and dizziness, the record suggested that she was conscious without confusion or delirium, and had clear communication ability and fair emotional state.  She was prescribed Sibelium and Stemetil, which were medications for relieving dizziness, on top of her own medications. Her condition was stabilised and was discharged the following day.

155.  Despite admission to the hospital for on-and-off and even profuse vaginal bleeding in early 2014, the Mother still persisted in refusing to be seen by a gynaecologist.  She accepted medications.  After the making of the 2013 Will, the Mother was still reluctant to be admitted to the hospital for her condition, and had on more than one occasion claimed either resort to divine or self-healing or eventually even expressed giving up on her life.  On 12 June 2014, the Mother was found unconscious at home.  She was sent to the hospital but certified dead in less than an hour after arrival.  The certified cause of death was cancer of the corpus, ie uterine cancer.

Neurological expert evidence

156.  The neurological experts, Dr Choa and Dr Woo, had considered the medical history of the Mother.  Specifically, the experts shared the observation that diagnostic label of “senility” used by the hospital and recited by Dr Lam in describing the condition of the Mother is non-specific.  Dr Choa understood that Dr Lam took senility to refer to general frailty and mental deterioration.  Dr Woo took that to refer to ageing of cognitive or physical function or both.  The fact was no actual cognitive power test had ever been performed on the Mother.

157.  The experts had also referred to, amongst others, the witness statements as well as the attendance notes of PWKW in respect of the 3 meetings and instruction taking mentioned above for the purpose of making the 2013 Will.  Considering the available materials, Dr Choa considered that the Mother was almost certainly not suffering from a physical form of dementia such as Alzheimer’s disease or vascular dementia.  Determination of her testamentary capacity would have to depend on the finding of psychiatry pathology.  Dr Woo opined that the Mother had at most a mild to moderate dementia at the material time, but the Mother possessed insight and judgment as well as awareness and initiative in respect of the preparation of the 2013 Will.  Both experts agreed that from a neurological perspective, the Mother possessed normal testamentary capacity when she executed the 2013 Will.

158.  The experts had the opportunity of considering further witness statements and documentary evidence discussed above before producing their supplemental joint report.

159.  In the supplemental joint report, Dr Choa explained that elderlies with arteriosclerosis and heart failure are prone to episodes of confusion.  However, in between these episodes, the patient typically have normal or near-normal (age-corrected) cognition.  To him, the testimony of R Chan and W Wong in respect of their meetings also conclusively demonstrated that the Mother was in a lucid state on those occasions.  He also noted the exclusion of Rina from inheritance under the 2013 Will also existed under the 1996 Will.  He maintained that it was most unlikely that the Mother lacked testamentary capacity when she made the 2013 Will.

160.  In the supplemental joint report, Dr Woo noted the conflicting observations of the witnesses about the Mother’s mental state especially after the passing of the Son.  However, he observed from the video recording of the banquet on 18 May 2013 produced by Poon mentioned above that the Mother was ambulatory and capable of meaningful communication, showing no sign of significant degree of dementia.  He also found his previous observation corroborated, that is the religiosity and superstition of the Mother were probably long-standing instead of indication of mental derangement.  He noted that the Mother did attend the solicitors’ office on 3 occasions during which there were discussion and telephone conversation regarding the intended bequests including that of the Property. He maintained his view that the Mother probably had the capacity of making a rational choice of and being aware of the pros and cons of her decision.

Psychiatric expert evidence

161.  Dr Lai acknowledged that the account according to the statements of Wai, Lung, R Chan and W Wong appeared to indicate that the Mother had the awareness and understanding to express her testamentary instruction for the making of the 2013 Will.  However, considering the medical notes of Dr Lam mentioned above and the witness statement of Wong, Dr Lai interpreted the circumstances surrounding the Mother as of the time of the 2013 Will to be a combination of advance age, medication for dementia, delusion, emotional symptoms, abnormal behaviour, refusal of medical advice, grief reaction and misbelief.  He considered the mental condition of the Mother to be abnormal, which affected her perception, understanding and decision making before and after the making of the 2013 Will.  In the absence of a mental capacity assessment, which he opined ought to have been carried out, before the making of the 2013 Will, Dr Lai concluded that the Mother needs to be considered as lacking the mental capacity to make the will then.

162.  Dr Chen started by explaining the proper understanding to be attached to the various diagnostic descriptions concerning the Mother in the medical records and reports.

163.  First, instead of the use of ‘senility’ in describing the Mother’s condition in the medical notes, Dr Chen considered that neurocognitive disorder (NCD) or dementia would have been the condition to look for, if it was to be medically meaningful. Such scepticism about the label of ‘senility’ aligned with the observation of the neurological experts mentioned.  As such, Dr Chen observed that the available medical notes and records only afforded basis for describing the Mother as an elderly person being weak due to multiple weakness but not exactly diagnosis of NCD or dementia.

164.  Second, Dr Chen explained the relevance of atherosclerosis.  People with systemic atherosclerosis may be at risk of having the same in the brain, and those with brain atherosclerosis may have a risk of developing NCD in future years.  However, one who is at the risk of general atherosclerosis does not necessarily mean he or she would have brain atherosclerosis.  One who has brain atherosclerosis does not necessarily mean he or she would have cognitive deficits.  Only when there is severe brain atherosclerosis may one become cognitively impaired whereas mild condition would not seriously affect mental capacity or daily activities.

165.  Third, regarding chronic heart disease, it is a physical disease which does not cause cognitive deficits in the absence of severe widespread atherosclerosis in the brain.

166.  Fourth, Dr Chen explained how one should properly understand the conditions of paraphrenia and delusion.  One of the diagnostic criteria of paraphrenia is paranoid delusion.  Amongst others, delusions are fixed beliefs that are not amenable to change in the light of conflicting evidence.  They are deemed bizarre if not understandable to same-culture peers and not deriving from ordinary life experiences.  However, the distinction between a delusion and a strongly held idea is sometimes difficult to make and depends in part on the degree of conviction which the belief is held despite clear or reasonable contradictory evidence regarding its veracity.  Up to today, paraphrenia is not an accepted diagnostic entity under DSM-V classification system, and the closest psychiatric diagnosis would be delusional disorder.  This entails the presence of one or more delusion that persists for at least a month.  Apart from the impact of delusion or its ramification, functioning is not markedly impaired and behaviour is not obviously bizarre or odd.  In case of manic or depressive episodes, they have been brief relative to the duration of the delusional periods.  The disturbance is not attributable to the psychological effect of a substance or another medical condition and is not better explained by another medical disorder.

167.  With the above borne in mind, Dr Chen made an effort to understand the peculiar background, education, personality, daily habits and interests of the Mother during her lifetime according to the information from the witness statements before proceeding to interpret, also according to the witness statements and medical notes, her behaviour and mentality manifested prior and subsequent to the making of the 2013 Will.  For instance, Dr Chen managed to note that whilst the Mother had her persistence in rejecting the idea of letting a gynaecologist examine her, she never completely denied western medicine or treatment or hospital admission.  He also discerned from the information the Mother’s religious disposition, which explained some of her behaviour and reaction to matters.  He saw the possibility that the Mother might be of low educational background.    In court, Dr Chen accepted that he could say no further than that in respect of her educational background.  His interpretation was that the Mother was a normal nonagenarian who was independent and traditional, perhaps opinionated and brittle, meanwhile feeling sad and helpless in her situation particularly after the Son’s passing. Dr Chen acknowledged that the Mother could be suffering from occasional lapse of memory between 2011 and June 2013 but that could objectively be incidental to normal ageing process, in view of the lack of evidence of steady and continuous deterioration as well as the evidence of many instances of normal behaviour exhibiting ability to remember, recognise, decide and change mind in decision-making.  Dr Chen further tested the Mother’s case against the criteria of mild cognitive impairment, though the same has yet to be accepted by psychiatry standards such as DSM-V.  He considered that the Mother’s case was unlikely to satisfy the diagnosis of the mild form of NCD.

168.  Dr Chen noted the emotional and behavioural symptoms demonstrated by the Mother, according to the available medical records and the various witness statements, at different points of time during her lifetime particularly after the passing of the Son and the making of the 2013 Will.  The expert provided his interpretations. Amongst others, he observed that the Mother appeared to manage going through the sorrow of bereavement, in view of the way she coped with the funeral and burial of the Son as well as dealt with the lawyers in making the 2013 Will.  However, life was difficult for her in the absence of family support and with at the same time multiple physical problems including uterine cancer.  The expert found it difficult to know if the Mother was then deeply depressed but he found no record of depressive symptoms.  The fact was there was so far no actual diagnosis of depression.  One possibility was that there came a point when she manifested that she did not find life interesting to her and was prepared to accept that the end of her life was near.

169.  Considering Dr Lam’s record of the Mother’s complaints about being poisoned over the years against the DSM-V criteria mentioned above, Dr Chen opined that it was unlikely that she was suffering from delusional disorder.  First, the frequency and persistence of the Mother’s complaints did not match those in the diagnosis of delusional disorder. Importantly, the Mother was not seen to have taken the perceived harm seriously.  Apart from complaining to the doctor, the Mother did not refuse to see the helpers or even to terminate their service so as to avoid the perceived persecution.  She had them continued to serve her and to take care of the daily household chores.  In her final days, she would still gather the helpers around her to seek their assurance to stay employed to maintain the Property.  Second, various side effects of the prescribed Exelon were recorded by Dr Lam on divers dates between 2011 and 2012.  However, it was unclear if the same had been explained to the Mother.  It was also unclear if the relatively low dosage of Exelon recorded was the result of such concern, and there was no record of that.  Dr Chen therefore could not rule out that if the Mother was not aware of what she complained about aligned with her genuine physical condition and some of the possible side effects of the medication, she might have wrongly attributed her discomfort to reasons such as the perceived wrongdoing of the helpers.  That may appeal to a normal bystander as being paranoid or delusional.  Yet the fact might not be.

170.  All the circumstances considered, Dr Chen was not convinced that the Mother was incapacitated from knowing and understanding the nature and effect of the 2013 Will when she executed it. It was believed that she knew the extent of the assets being disposed of under the will.  She was capable of comprehending and appreciating the claims to which she ought to give effect, including the conscious decision to disinherit Rina and to maintain her bequest in favour of Jason.  Dr Chen observed that the Mother was likely of low educational background, and a traditional, conservative, religious, opinionated or perhaps bossy or snobby nonagenarian.  She went through consecutive bereavement.  She had occasional memory lapse which was likely age-related or at most no more than mild cognitive impairment.  However, that would not affect her executive function and mental capacity.  Dr Chen opined that there was no disorder that would poison her mind or impair her mental capacity at the time when she made the 2013 Will.  Her condition turned worse after early 2014 when she appeared to have given up on life being then impacted by multiple physical conditions, including uterine cancer, and lonely family life.

171.  After considering the further witness statements, the psychiatric experts respectively stated their further opinion in their supplemental joint report.

172.  Dr Lai noted the medical records of the various physical conditions of the Mother on divers dates between 2010 and 2014.  Referring to the recorded increase in the number of consultations by Dr Lam between 2010 and 2013, Dr Lai observed that the Mother had increasing and/or deteriorating health issues but did not react like an ordinary person to her symptoms as she refused appropriate treatment and medication.  He referred to the statistics in respect of percentage risk of dementia caused by atherosclerosis and congestive heart failure for a person of the Mother’s age.  Hence his opinion that the Mother had dementia as a result of a combination of Alzheimer’s disease and vascular dementia as well as depression and mental impact as a result of her congestive heart failure and vaginal bleeding.

173.  Dr Lai referred to the further witness statements, mainly of Chow, Wong and Rina, which he considered to be suggesting problems in the Mother around and at the time of the making of the 2013 Will, such as changes of her behaviour and temper, mental inability to appreciate information about the medical condition and appropriate treatment of the Son or even delusion, grief, depression or even self-blame after the passing of the Son, uncertainty in the bequest, particularly the donation, and the choice of executor as well as the hasty decision to change the bequest of the Property from TWGH to Lung.  They, Dr Lai opined, were indicative of cognitive impairment and depression affecting the Mother at the time.

174.  Dr Lai also repeated his analysis in respect of the mental capacity of the Mother at the various meetings at PWKW’s office and the execution of the 2013 Will. Amongst others, he pointed out that a person with dementia, particularly in its early stage with mild degree of cognitive impairment, could appear to be apparently normal in verbal communication and behaviour in front of others.  He suggested an explanation, namely that the person might be aware of her own memory impairment, and might not say much or might talk mainly on those areas she was well acquainted with and talk less about issues she was not so well acquainted.  For the same reason, the person might give only general answers.

175.  Dr Lai then turned to rate the condition of the Mother according to the Clinical Dementia Rating (CDR) used in the Evaluation of the Permanent Impairment (4^th ed) published by the American Medical Association in 6 categories, namely (i) memory, (ii) orientation, (iii) judgment and problem solving, (iv) community affairs, (v) home and hobbies as well as (vi) personal care.  In the case of the Mother, Dr Lai rated her overall CDR to be 0.5-1 or questionable to mild degree of impairment.  In particular, Dr Lai opined that while the neurological experts also considered that the Mother had suffered from mild degree of dementia at the time, it was the delusion, depression and/or abnormality of her mind that could have affected her decision making at the time which should be considered.  His conclusion was that the mental capacity of the Mother to make the 2013 Will was very much doubtful.

176.  Dr Chen consistently reminded one of the important background consideration, namely the poor relationship between the Mother and Rina.  The evidence suggested that the situation was much earlier than 2013 as a matter of fact instead of delusional idea as in the case of a psychotic patient or memory impairment due to dementia or neuro-cognitive disorder.  Her decision to disinherit Rina was certainly not a result of any memory impairment as she did not forget about making a bequest to Rina’s son, Jason.

177.  Dr Chen repeated the observation that the Mother was a nonagenarian who appeared to struggle through her multiple and fluctuating physical illnesses just like many senile citizens.  She was able to consult Dr Lam at her own initiative after the passing of the Father and subsequently the Son as well.  The Mother cared to participate in social events including the charity walk at the Peak in late 2012, the vegetarian meal at the Buddhist temple in early 2013 and the dinner of HKCCF in mid-2013 with others. She also initiated the cemetery visit with her chosen company after the passing of the Son soon before the making of the 2013 Will.  About the same time, the Mother also initiated the approach to PWKW with the help of S Chan for the purpose of, amongst other things, making a new will.  She was also able to attend to that by attending to the various meetings as well as confirming and varying instructions in respect of her intended bequests in the course of them.

178.  Dr Chen opined that the objective observations, including those mentioned above, helped to dismiss the exaggeration and over-generalisation in interpreting her behaviours and symptoms.  Referring to the 6 categories of CDR scale, Dr Chen opined that the Mother’s memory, orientation, judgment and problem solving, community affairs as well as home and hobbies had suffered not cognitive impairment while there was not more than 0.5 impairment in her personal care mainly due to her physical weakness in her later days due to cancer.

179.  Dr Chen also repeated his explanation in respect of the condition of paraphrenia, which is not to be mixed with the psychiatric symptom of delusion.  As explained, the latter symptom is a psychiatric symptom for fixed and unshakable belief due to a psychotic illness in which there must no memory impairment or dementia.  In other words, paraphrenia and dementia are mutually exclusive.  Dr Chen repeated his understanding of the various complaints by the Mother about the domestic helpers during her lifetime which Dr Lai took to suggest delusional symptoms.  Dr Chen opined that they were more likely due to misattribution of bodily symptoms or inability to locate her things to others such as the domestic helpers.  Yet the evidence suggested that the Mother did not hold such view as fixed as those in the case of real delusion.  Dr Chen also repeated his opinion that people suffering from coronary heart disease has a risk of dementia, but saying that people suffering from such disease is having dementia would be an unwarranted generalisation.

180.  In other words, the psychiatric experts maintained their divergent opinion.  All things considered, I have adequate reasons for preferring the opinion of Dr Chen to that of Dr Lai.

181.  First, the circumstances surrounding how the Mother came to initiate the making of a new will and the steps the Mother took in the whole process at the relevant time were already set out above.  They were abundant and multiple objective facts as apparent to third parties.  Such circumstances appeared to differ significantly from those of many cases which indeed tended to give rise to suspicion or caused concern, and many of those decided cases cited before this court belonged to such type.  See for instance, Re Key, deceased [2010] WLR 2020; Re Estate of Au Kong Tim (above); Lam Wai Lik Eric & Ors v Tam Suet Mui [2020] HKCFI 3047.  What the witnesses gave were their account of the facts as apparent to them.  Whether and how far any of their account is accepted is a matter of fact to be found by this court. Where there had been no cognitive power assessment of the Mother at the relevant time, the medical experts understandably founded a significant part of their opinion on their interpretation of the account of the witnesses of the facts as apparent to them as well.  Such approach was obvious from their reports.  The finding of this court in respect of the reliability of these accounts directly impacts on the foundation of their opinion. From the overview of the witnesses to the discussion in respect of their factual evidence so far, it should be abundantly clear that this court prefers the evidence from the defence as I do find the evidence of Rina and her witnesses unreliable to say the least.  This, I believe, becomes particularly significant when one considers the criticism by counsel for TWGH about the bias and undue emphasis by Dr Lai in looking for instances of abnormal conduct and behaviour of the Mother which largely came from the account of these witnesses for Rina.

182.  Second, not all of what Dr Lai opined to be manifestation of abnormal mental state of the Mother are readily understandable.  For instance, Dr Lai rated the Mother’s problem solving ability to have been impaired at the relevant time according to the CDR.  One example he cited was how the Mother coped with the sickness of the Son and herself.  Again the scepticism of the Mother about western medicine particularly radiological treatment was referred to.  However, that was not really new but had been manifested as part of the Mother’s character before.  One also should not lose sight of the fact that the Son was an educated grown up who had his own decision making power regarding his health condition.  When the Son collapsed and was admitted to the hospital, it was said that the doctor advised that nothing more could be done and the life support might have to be discontinued.  That the Mother would at that juncture refuse to seek second medical opinion but resort to praying for miracle should be readily understandable in the circumstances, and at least not susceptible to categorisation of abnormal behaviour.  As for the Mother’s persistence in refusal to consult a specialist for her own vaginal bleeding condition, that was also nothing new but expected to be understood in view of her known character.  When it came to the days soon before her passing, that her refusal and even indication of giving up on her life should not necessarily defy normal understanding.  As in many other instances referred to by Dr Lai as deviation from what would have been expected from an ordinary person, I am impressed that no sufficient regard has been had to the peculiar background, character as well as perception about mode and matters of life of the Mother which significantly shaped her own norm.  On the contrary, I am impressed that Dr Chen was acutely aware of that in his analysis.

183.  Dr Lai also opined that the Mother suffered from memory impairment.  Instances of the Mother forgetting about having had meal and the words of the litanies, according to Wong, were referred to. Reliability of Wong’s evidence as mentioned above aside, the circumstances surrounding those instances and their frequency were unclear.  Further, the fact was that for the purpose of arranging burial of the Son and the making of a new will, she initiated at different points of time the approach to various persons whom she remembered without difficulty.  That she then had others to locate the contact details or to dial the telephone for her for such purpose hardly demonstrated memory impairment, let alone abnormality.

184.  Third, Dr Lai’s opinion about the Mother’s decision to disinherit Rina causes concern.  He somehow considered that such decision raised an alarm bell.  The fact however was that the Mother did not come to such a decision for the first time or that the decision significantly differed from her previous testamentary intention.  That was precisely her testamentary intention under the 1996 Will, which therefore was consistent under the 2013 Will.  The circumstances were sufficiently clear that the Mother’s negative view about Rina was not delusional as such, unlike the circumstances of cases cited before this court such as Re Ritchie [2009] EWHC 709.  That the 1996 Will became undisputed was the stance taken by Rina only when this trial commenced and therefore probably unknown to the expert when he prepared his reports.  However, the alleged existence and such term of the 1996 Will, and hence the possibility of such consistent testamentary intention subject to the finding of the court, were known.  So was the evidence of the poor relationship between the Mother and Rina.  As mentioned, there is no contention that the Mother indicated that she somehow changed her mind since the 1996 Will or after the passing of the Son.  However, Dr Lai proposed to ascertain whether there could have been misunderstanding between the Mother and Rina as well as whether there could be possibility of the two coming to terms with one another, now that Rina became the sole surviving child.  As counsel for TWGH points out, the psychiatric expert is not expected to speculate or to position himself as if he were a counsellor.  Importantly, insofar as Dr Lai opined, on the basis of his proposed approach mentioned above, that one should therefore be sceptical about the Mother’s decision or maintaining of her decision to disinherit Rina under the 2013 Will, I have difficulty in accepting that as foundation for questioning the Mother’s testamentary capacity, not to mention her normality.

185.  Fourth, Dr Lai was of the opinion that the Mother was affected by dementia, though he accepted in court that he would defer to the neurological experts on whether there was likely Alzheimer’s disease or vascular dementia.  He rated the Mother’s cognitive impairment as relatively mild.  Whilst what he provided was opinion about the general mental condition of the Mother around the time of the making of the 2013 Will, that does not necessarily answer the question of whether the specific Banks v Goodfellow criteria were met at that time. Whether or not that does so remains a question of fact to be found, and the expert evidence is but one of the evidence to be taken into account.

186.  In his report, Dr Lai acknowledged that the Mother knew that she was to make a will and knew that she was going to the solicitor’s firm to make a will in June 2013.  The Mother knew she had a previous will and she was making a new will.  He acknowledged that the Mother knew that the Property was hers and had a plan to maintain the Property after her death.  He acknowledged that the Mother formed her ideas about the content of her will, including donation to charity and the maintenance of the Property, for which she approached and asked Lung.  He also acknowledged that the Mother had decided to make a new will, was able to express herself and to indicate her approval when the contents of the will were read to her.  Considering the evidence as to fact as accepted by this court together with the neurological and psychiatric expert evidence, I am not convinced that all of those specific initiatives and conduct of the Mother and her interaction with third parties which led to the making of the 2013 Will and its terms could really be explained as having been caused or tainted by her such general mental condition, let alone incapacity, as assessed by Dr Lai.

187.  Upon holistic assessment of the circumstances, one may not find that the Mother was condition-free in terms of her physical and psychiatric state generally during the time up to the making of the 2013 Will.  Yet at the same time, the evidence, properly and holistically assessed, falls short of proof of any mental or psychiatric disorder.  Importantly, I am not convinced her condition and its degree as suggested by the evidence, so properly considered, compromised any of her testamentary capacity in making and executing the 2013 Will in accordance with the Banks v Goodfellow criteria.

Knowledge and approval

188.  As mentioned, on the basis that due execution and testamentary capacity of the Mother at the material time are established, Rina, it seems from the closing submission on her behalf, may no longer take issue as to whether the Mother knew and approved of the contents of the 2013 Will.  Therefore discussion in respect of this criterion could be brief and for completeness.

189.  It has been said that where the first two requirements under Banks v Goodfellow have been satisfied, knowledge and approval of the contents of the will in question be presumed without the need to adduce affirmative evidence save in the exceptional circumstances where the 2^nd Rule in Barry v Butlin (above) applied: see Nina Kung(above) at §§206-208.  Determination of the issue, in my judgment, should well be a matter of assessment of all the evidence adduced by the parties instead of the invoking of the presumption. The same may be said about the presumption in favour of the will being true manifestation of the testator’s intention arising when the will had been professionally prepared by solicitors, duly executed and read over to the testator before execution: see Williams, Mortimer and Sunnucks(above) at §10-29.

190.  The 2^nd Rule in Barry v Butlin refers to circumstances which would incite suspicion such as where the making of the will was engineered by he who stands to benefit from its terms.  However, there was no such circumstance in the present case.  Lung was not involved in the preparation of the 2013 Will. Nor was he intended as a beneficiary until the Mother at her initiative contacted him in the middle of the Third Meeting.  The alleged association between Wai and TWGH as the premise for the former’s benefit from the donation under the 2013 Will to the latter, as discussed, was mere conjecture without basis.

191.  From the point of time when the Mother conceived and started the new will making process to the involvement of the other parties concerned up to the multiple meetings with PWKW during which instructions were given and adjusted for the new will, the objective circumstances were such that the Mother acted at her initiative instead of being manipulated.  The terms were all along far from complex and were finalised at the Third Meeting.  As mentioned, the neurological experts opined that it was not likely that the Mother was incapable of reasonably understanding that.  In any event, W Wong and R Chan read over the draft to the Mother clause by clause in Cantonese before the Mother signified her approval by signing it together with the confirmation of her instructions.  The original of the 2013 Will and copy of the confirmation of instructions were handed to the Mother, who also signed in acknowledgement of receipt of the same.

192.  In the circumstances, and coupled with the fact that she did not lack the testamentary capacity as discussed above, there is no real basis for doubting that the Mother in fact knew and approved of the contents of the 2013 Will as well.

ORDER

193.  All the circumstances considered, I find that the 2013 Will is proved in solemn form.  In the absence of counterclaim, I refrain from going further to grant a declaratory relief to that effect as requested by counsel for TWGH by way of closing submission.  This should also be unnecessary when the probate in respect of the 2013 Will already granted is effectively maintained.

194.  The claim in the present action must be dismissed.

195.  As to costs, this court should take into account the pleaded stance of Rina in commencing the present action, including that in respect of her alleged entitlement to the estate of the Mother and the validity of the 1996 Will, which changed only at the commencement of the trial, as well as the findings and the outcome set out above.  Wai and Lung always adopted a neutral stance.  TWGH was involved as a charity intended by the Mother to benefit as such under the 2013 Will, and its stance and contest served to prevent the failure of the Mother’s express testamentary wish to that extent which is now upheld.  Hence a nisi order that Rina shall personally pay the costs of Wai, Lung and TWGH, including any costs reserved, to be taxed if not agreed with certificate for counsel (in the case of TWGH, 3 counsel).  In the absence of application in 14 days to vary, the nisi costs order will become absolute without further order.