HO WAI PING v. HO KA MAN CARMEN

CACV 17/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 17 OF 2016

(ON APPEAL FROM HCAP NO 16 OF 2009)

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JUDGMENT

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Hon Yuen JA:

1.1.   This is an appeal from a Judgment of Deputy High Court Judge S T Poon given on 26 November 2015 (“the Judgment”) in a probate action in which

-   the Will dated 15 June 2003 of Ho Chi Yin (“the Deceased”) was pronounced in solemn form,

-   Letters of Administration (with will annexed) of the Deceased’s estate were granted to the Deceased’s sister Ho Wai Ping (“the Sister”) who was the plaintiff in the action, and

-   the counterclaim of the defendant, the Deceased’s daughter Carmen Ho Ka Man (“the Daughter”), was dismissed.

1.2.   On 7 January 2016, the learned deputy judge made a final costs order that the Sister’s costs in the action be paid out of the estate and the Daughter do bear her own costs, both sets of costs to be taxed in accordance with Legal Aid Regulations.  

Background

2.1.   By reason of some of the arguments advanced on appeal, it is necessary to set out the factual background. 

2.2.   The Deceased was born in Hong Kong in 1951.  His parents had three sons and two daughters.

2.3.   The Deceased was the second child and the oldest son.  Unfortunately the Deceased’s mother, elder sister and one of his younger brothers Ho Chi Shing all died young.  The Sister was younger than the Deceased by 3 years and the other younger brother, Ho Chi Ming was younger by 7 years.

2.4.   At the age of 23, the Deceased joined the Housing Department as a foreman.  But in his 29 years there, he worked his way up, acquired professional engineering qualifications and was promoted regularly.  By the time he went on pre-retirement leave in February 2003 aged 52 (having opted for retirement under the Voluntary Departure Scheme), he had become a Building Services Engineer and held a Master of Science degree in information technology. 

2.5.   The Deceased was more comfortably off than the other members of his family.  His father was a policeman.  The Sister had only received primary education and worked as a carer in an elderly persons’ home.  The younger brother also had a low-income job.  

2.6.   In January 1977, the Deceased married Wong So Fun (“Madam Wong”).  In November 1978 their only child, the Daughter, was born. 

2.7.   In 1985, the Deceased and Madam Wong bought a flat in Wah Fai Court in Ying Wah Terrace (“the WF flat”) as joint tenants. 

2.8.   Unfortunately the marriage broke down acrimoniously.  In 1990, the Deceased and Madam Wong divorced, a year after he paid her a sum of money to acquire her interest in the WF flat.  He never re-married.  The Deceased had custody of the Daughter.

2.9.   A little later, Ho Chi Shing died.  The Deceased’s father had been living with Ho Chi Shing, and the Deceased then arranged for his father to move into the WF flat which was by then mortgage-free.

2.10.   As for the Deceased and his daughter, they lived in a rented flat in Ping On Mansion on Babington Path, as he was entitled to a private tenancy allowance from the Housing Department.  Two years later, the Deceased and Daughter moved to another rented flat in the same building (“the PO flat”).

2.11.   The Deceased sent the Daughter to boarding school in England.  Subsequently however, she did not wish to continue studying there.  It is common ground that this led to discord between the Deceased and the Daughter, culminating in her leaving home when she turned 18 in 1996.  The judge found that they had no contact thereafter¹. The Deceased and the Daughter had thus been estranged for some 7 years by the time he made the document the subject matter of the action (“the alleged Will”). 

2.12.   It would appear that the Deceased valued privacy.  None of his family and friends knew about his Daughter’s departure and estrangement, except for the Sister with whom he was close.  Thereafter the Deceased resided alone in the PO flat while the father continued to reside in the WF flat.

2.13.   In 2003 the Deceased took the benefit of the government’s Voluntary Departure Scheme.  He started pre-retirement leave in February 2003 and two months later, bought the flat he was then living in, i.e. the PO flat, for $1m.  He did not need a mortgage.  He had substantial deposits in his bank accounts and in addition, was entitled to a lump sum upon retirement on 31 July 2003.

2.14.   Such was the Deceased’s personal situation when he made the alleged Will on 15 June 2003.  

Events on 15 June 2003

3.1.   According to the Sister, whose evidence the judge accepted, on 13 June 2003 the Deceased called her and asked her out for lunch on 15 June 2003 which was a Sunday.  The Deceased said he was going for a long holiday² in South Africa before the termination of his pre-retirement leave and had something to give her before he left.

3.2.   On 15 June 2003, they met and went to a restaurant.  The Deceased gave the Sister a brown envelope containing documents.  He then took out from his pocket a white envelope containing a blank sheet of paper.  He told the Sister he was going to write a will and proceeded to write out a document in English (the alleged Will). 

The alleged Will

4.1.   What he wrote was as follows:

“HO CHI YIN’S WILL

I, HO CHI YIN, ID No.[redacted],when I died, will have my
belongings to be arranged as
follows:

(華輝閣)

(i) [The WF flat]
will belong to my father,
Mr HO HUNG.

(ii) [The PO flat]
at Babington Path shall
belong to my sister,
Ms HO WAI Ping.

(iii) All my accounts money
including HK Bank, Hang Seng
Bank, East Asia Bank,
Kam Shing Bank, etc. shall
be donated to HK Community
Charity (公益金).

(iv) All my money provided by HKSAR
as I am a civil servant shall
be donated to HK Community Charity)
(公益金)”.

4.2.   The above writing took up the entire side of the sheet of paper.  At the left margin, the Deceased signed his name in Chinese and English, followed by “signed on 15.6.2003.  Witness by”.

4.3.   The Deceased then gave the alleged Will to the Sister and explained³ that after he died, the WF flat would go to their father and the PO flat would go to her. 

4.4.   On hearing that, the Sister told the Deceased that she did not want it.  When the Deceased did not respond, the Sister asked what about the Daughter. 

4.5.   The Deceased then said:

-   the reason why he had made a will was that he did not wish Madam Wong (his ex-wife) to use the Daughter to get his two flats; he would not leave them a cent;

-   if he encountered a mishap⁴, the Sister was to take it to Kwan Yuk Ping⁵ (“Madam Kwan”) and her younger brother (“the Kwans”) for signature, then they⁶ would not be able to take his property. 

4.6.   Upon hearing that, the Sister said in that case he should write (give) it⁷ to Ho Chi Ming.  The Deceased then said he had written (given) the WF flat to their father, and if their father was not around, the WF flat would go to Ho Chi Ming, and this flat (the PO flat) would be the Sister’s.  

4.7.   The Sister said in that case, she would take the flat,she would rent it out and use the rental to maintain their father.

4.8.   The Deceased nodded and told her that the money would be donated to the Community Chest.

4.9.   At that juncture, the Sister, fearing that something might happen to the Deceased after he had written the alleged Will, wept.  The Deceased put the alleged Will into the white envelope and gave it to the Sister, telling her to keep it safely.  They then proceeded to order their meal.

5.  The Deceased took the 23:40 flight to South Africa that night.

Events after the Deceased’s return from holidays

6.1.   The Deceased called the Sister on his return from his holidays a little over six weeks later.  In the course of the telephone conversation, she asked him when she should return the documents to him.  He indicated she could do so at her convenience.

6.2.   When they met subsequently, the Deceased took back the brown envelope only, and told the Sister to keep the “letter” (the alleged Will) safely, saying it was not necessary for her to return it to him⁸. She did as instructed and the two of them did not speak about the alleged Will again. 

Conversation with Madam Kwan

7.1.   The Sister did however mention the alleged Will to her friend Madam Kwan the following year, in the course of a casual conversation, when Madam Kwan was asking after the Daughter.  The Sister told Madam Kwan about the matters set out above⁹ and the Deceased’s request for her (Madam Kwan) to sign the alleged Will when he died.

7.2.   Madam Kwan was unhappy on hearing that, because the Deceased had not approached her personally, which she felt showed a lack of respect.  She was also not sure if it was legally proper for her to sign the alleged Will.  So she told the Sister she would not do so.  The Sister did not take the matter further and the conversation moved on to other things. 

7.3.   The Sister did not tell the Deceased about Madam Kwan’s response.  When cross-examined on why she did not take the matter further with Madam Kwan and why she did not tell the Deceased about their conversation, she said in her mind she associated Madam Kwan’s signing of the alleged Will with the death of her brother (the Deceased), and she wished him to have a long life.  She thought that as long as her brother was alive, she did not need to ask Madam Kwan to sign the document.  So she did not bring up the matter again as she thought a request for Madam Kwan’s signature would only be needed after her brother’s death, which was something she could not bear to think about¹⁰.  When cross-examined on the possibility that Madam Kwan might refuse to sign the alleged Will when the Deceased died, the Sister’s response was that she would never have hoped for something to happen to her brother¹¹.

Death of the father

8.1.   In November 2006 the Deceased’s father died.

8.2.   There was evidence which the judge accepted¹² that after the father’s death, the Deceased was considering the sale of the WF flat which the father had occupied.

Deceased’s death

9.  However on 2 December 2007, the Deceased died suddenly in a traffic accident.  He was 56.  This was 4½ years after he made the alleged Will.

Events after death

10.  The events after the Deceased’s death are not material to this appeal.  Suffice it to say that in December 2008, the Daughter applied for a grant of letters of administration and a caveat was entered by the Sister.   

Proceedings

11.1.   In 2009, the Sister commenced the probate action.  It was acknowledged in the statement of claim that the alleged Will had not been executed in accordance with s.5(1)(c)¹³ and (d)¹⁴ of the Wills Ordinance, Cap.30.  The Sister pleaded s.5(2) which provides:

“A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person”.

11.2.   The trial took place over six days in May and June 2014.  The Sister and the Daughter both gave evidence.  Madam Kwan and some other persons also gave evidence.

11.3.   The Daughter’s case, as pleaded in para. 3A of her Amended Defence, was as follows:

“Further ... the Defendant says there is a reasonable doubt that the Alleged Will was a gap will only intended to be operative in case the Deceased met with his death during his trip [to South Africa], or alternatively, the Deceased had sometime after his safe return from the said trip withdrawn his intention that the Alleged Will contained his testamentary intentions”.

11.4.   The only issue, by the time of closing, was whether the court should be satisfied that there could be no reasonable doubt that the alleged Will embodied the Deceased’s testamentary intentions.

Judgment of the deputy judge  

12.1.   In his Judgment, the judge discussed

-   s.5(2) and similar provisions in other jurisdictions (paras. 45-63);

-   testamentary intentions (paras. 64-67); and

-   conditional wills (paras. 68-70).  

12.2.   The judge accepted the Sister’s evidence in full and rejected the Daughter’s evidence.  He rejected the Daughter’s defence and pronounced for the Will in solemn form.

Appeal

13.  The Daughter appealed.  The submissions of Mr Sussex SC¹⁵ leading Mr K C Chan¹⁶ can be encapsulated as follows:

(A)   the judgment was unsafe on account of errors attributable to the delay in its delivery;

(B)   the judge erred in holding that the proposition that the alleged Will was intended to cater for a contingency is untenable in law;

(C)   the judge erred in failing to consider, or rejecting, the following matters (which were referred to as “the Doubts”)¹⁷:

(1)   the alleged Will was intended to take effect as a will only if the Deceased died during his holiday in Africa; and/or

(2)   it was dependent upon the contingency of that event; and/or

(3)   that intention was not the testamentary intention required for s.5(2)¹⁸;

(D)   the judge erred in “effectively” applying the civil standard of proof and in disallowing certain questions during the Sister’s cross-examination;

(E)   the judge erred in failing to find that the Sister’s evidence of events and conversations relating to the alleged Will was not sufficiently credible and/or reliable to remove reasonable doubt or suspicion.

Discussion

(A)   Delay in Judgment

14.1.   The Judgment was delivered 17 months after trial.  Mr Sussex submitted that there was inordinate delay and that the Judgment should be set aside because it contained errors which were probably or possibly attributable to the delay.

14.2.   As Mr Sussex accepts, a judgment will not be set aside on delay alone.  The approach of the appellate court is “to consider the challenge with a higher degree of scrutiny”¹⁹. Accordingly I have examined counsel’s submissions and the evidence (including the entire transcript) in detail, but it remains the appellant’s task to identify “omissions, errors, misunderstandings, inconsistencies and the like which invalidate the [judge’s] findings, render the judgment unsafe, and have led to injustice for the appellant”²⁰.

15.  Mr Sussex has referred this court to five matters which he submitted were “demonstrable errors/flaws” on the part of the judge. 

16.1.   First, it was submitted that when the judge said “I do not see the benefit for [the Sister] to give false evidence on those aspects in proving her case under s.5(2)”²¹, he had lost sight of the basic fact that the Sister stood to gain personally by reason of the bequest of thePO flat.

16.2.   In my view, that criticism is not well-founded.  The judge had referred to the bequest to the Sister in various parts of the Judgment²², and had specifically incorporated²³ the part of the Sister’s witness statement in which she recounted her initial refusal, and eventual acceptance, of the bequest to her.  The judge was evidently aware of the bequest to the Sister.

16.3.   Further, the sentence quoted by Mr Sussex above refers to “those aspects”.  In the context²⁴ the judge was referring to Mr Chan’s criticism of the Sister’s evidence with regard to three specific matters: that (i) at the lunch meeting on 15 June, the Deceased and the Sister did not talk about the length of the trip²⁵; (ii) they did not talk about the documents in the brown envelope; and (iii) afterwards they did not talk about the alleged Will, despite many opportunities to do so.  The judge obviously accepted the Sister’s evidence that the siblings had not discussed those matters, and was simply saying that the Sister would not have advanced her case by giving false evidence on those aspects.  

17.1.   Second, it was submitted that the judge gave no reason in finding the Sister was an honest and truthful witness and in accepting her evidence in full.

17.2.   However the judge was clearly aware of the Daughter’s challenge of the Sister’s credibility and reliability, both generally and with regard to specific matters.  In the Judgment²⁶, he said:  

“Mr Chan submitted that there is doubt as to whether [the Sister] is a credible and reliable witness generally; and particularly, whether she has told the court the whole truth on relevant matters and whether she has reliably recounted all the pertinent conversations between her and the Deceased in relation to the alleged Will”.

17.3.   For the purposes of assessing her credibility and reliability, the judge had the benefit of seeing and hearing her give evidence under lengthy and thorough cross-examination.  He found she gave “straightforward and direct evidence when being cross-examined”²⁷.

17.4.   Further, although expressly stated to be of limited relevance²⁸, the judge also noted the difference in her evidence with that of the Daughter on the issue of the Deceased’s relationship with the latter after she left home.  The judge rejected the Daughter’s evidence for reasons set out in the Judgment²⁹. 

17.5.   The judge found the Sister to be an honest and credible witness who had “nothing to hide from the court”³⁰. He accepted her evidence in full, “in particular, the circumstances under which the Will was made by the Deceased and their conversations during the lunch meeting on 15 June 2003”³¹. The judge was entitled to make such a finding. 

17.6.   In any event, having read the entire transcript of the Sister’s evidence, it is clear in my view that her evidence has the ring of truth to it and I do not see any evidence which contradicts or is inconsistent with it.  

18.1.   Third, it was submitted that the judge did not mention or consider the change in the Sister’s evidence as to whether the siblings had talked about the length of the trip during the lunch meeting.

18.2.   In the Sister’s witness statement, she said the Deceased told her he was going on a long holiday.  In answer to a question in cross-examination, she said the Deceased had told her the trip would be one to two months³². 

18.3.   When Mr Chan pointed out to her that in the witness statement, she had not referred to a period of time, her answer was that she had just remembered it as a result of his questioning, which she said was far more detailed than that of her lawyers’, and that it caused her to recall more.

18.4.   In my view, there was no change as such in the Sister’s evidence.  In her witness statement, she had referred to the Deceased taking a long holiday.  On cross-examination, she supplemented that evidence with the approximate length of the holiday.  That was not contradictory or inconsistent evidence that the judge needed to deal with.  

19.1.   Fourth, it was submitted that the judge quoted some of Mr Chan’s submissions out of context and did not consider and weigh his submissions on their “true merits”.

19.2.   The complaint is that the judge elided two paragraphs³³ of Mr Chan’s submissions and thought that the defendant required the Sister to give perfect evidence, which approach the judge rejected³⁴.

19.3.   In my view, it is not helpful to ask an appellate court to go through counsel’s submissions at trial (often lengthy and subject to oral variation or elaboration) and to compare them with the judge’s articulation of them.  Rather the focal point on appeal should be on whether the Judgment shows that the judge has correctly understood and applied the relevant law and whether there is evidence to support his findings of fact. 

19.4.   In the present case, the judge has correctly stated that what is required under s.5(2) is “the court’s satisfaction that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person”³⁵.  It matters not that he might or might not have misunderstood the defendant as saying that a higher standard is required when assessing the entirety of an individual’s evidence.

20.1.   Fifth, it was submitted that Mr Chan had raised “in detail a number of matters raising doubts and challenging the quality of [the Sister’s] evidence” which the judge did not consider and weigh “adequately and properly, if at all”. 

20.2.   In my view, such a submission is not helpful.  If it is the appellant’s case that there was a specific piece of evidence which was so overwhelmingly in favour of her case that the judge was obliged to address it but had failed to do so, then I would have expected that piece of evidence to be specifically discussed.  We have not been referred to any such overwhelming piece(s) of evidence. 

20.3.   In the present case, the judge had referred to Mr Chan’s list of factors³⁶ and specifically addressed some of them.  The evaluation of the relative relevance and the weight to be given to factors such as these is a matter within the province of the trial judge.  Subject to the discussion in the preceding paragraph, a judge is not required to address in the judgment each and every matter advanced by both parties.

(B)   Was the alleged Will “intended to cater for a contingency”? 

21.  Mr Sussex submitted³⁷ that there was a reasonable possibility that the alleged Will was written to cater for the contingency and risk that the Deceased would meet with an unexpected death during his long trip to Africa and was intended to take effect only if and when that happened.  He submitted that the judge erred in holding that “the [Daughter’s] proposition that the alleged Will was intended to cater for a contingency is untenable in law”³⁸.

22.1.   Before proceeding to discuss the appellant’s submissions, it may be helpful to set out the law. It is important to draw a distinction between:

(1)   the conditional execution of a document described as a will (which I will call for convenience a “conditionally-executed document”), and

(2)    the unconditional execution of a will which, in accordance with its terms, is conditional or contingent in its operation (a “conditional will”)

22.2.   A “conditionally-executed document” (even if it is entitled a will) is not valid as a will due to the absence of testamentary intent (animus testandi), for an immediate dispositive intent is required.  I shall discuss this later in this Judgment³⁹.

22.3.   As for a “conditional will”, it is valid but only takes effect when the condition is satisfied in accordance with the term set out therein. 

Conditional will?

23.1.   The law is stated in Theobald on Wills, 18^th ed para.1-008 as follows:    

“Wills are sometimes expressed to be conditional upon the testator’s death before a given period, such as return from a voyage or military expedition, or the like, and if the condition is clearly expressed, the will does not take effect if the condition is not fulfilled. On the other hand, if the will is so expressed as to show that the contingency is the motive which induced the testator to make the will, the will is not conditional. In other cases, it may be gathered from the disposition of property and other circumstances that a will expressed to be conditional was intended to take effect without regard to the condition. And if the language of the will is ambiguous, extrinsic evidence may be adduced to assist the court to decide whether or not it is conditional. However, extrinsic evidence is not admissible to make conditional a will which is on its face unconditional. ...”.

23.2.   The judge held that

(a)   as the alleged Will was “written in clear and unambiguous terms”⁴⁰ and

(b)   as there was noexpress condition and “a will may not be made conditional otherwise than in accordance with the conditions expressed in it”⁴¹ (relying on In the Goods of Spratt⁴²and Corbett v Newey⁴³), 

insofar as the Daughter was suggesting that the alleged Will was a conditional will, that proposition was untenable in law⁴⁴.

23.3.   Mr Sussex submitted that the judge was wrong in the proposition quoted at para. 23.2(b) above and that Spratt and Corbett v Newey did not support it. 

-  Spratt    

24.1.   I do not think that criticism is justified.  In Spratt⁴⁵ a soldier serving during a war had written in his military will about being under attack and the chances of his being killed or having an accident.  He survived the war and died many years later.  The court had to decide whether those words in his will were (a) only his reason for making the will, or alternatively (b) his limitation on the operation of the will. 

24.2.   If it was scenario (a), it was not a conditional will and it had effect even though he died after the war.  If, on the other hand, it was scenario (b), ie he was saying it was to take effect only on the happening of an event (his being killed in the war), it was a conditional will, and it would not have effect when he died after having survived the war. 

24.3.   The language used in the will in Spratt was ambiguous, and so the court had to consider the “whole language of the document and also the surrounding circumstances” to see whether it was scenario (a) or scenario (b). 

25.  In the Goods of Hugo⁴⁶, Roberts v Roberts⁴⁷and In the Goods of John Moss Winn (deceased)⁴⁸cited by Mr Sussex were all cases where the language of the wills showed that they were conditional wills. 

26.  In contrast with Sprattand these other cases, what the Deceased wrote in the alleged Will was clear.  He set out his instructions for the disposition of his assets “when I died”.  There was no reference at all to his trip to Africa.  So there was nothing in the language of the alleged Will which required the judge to consider if the trip to Africa was (a) only the reason for the Deceased making the will, or alternatively (b) his limitation on the operation of the will.  Only if there had been such language, and only if such language had been ambiguous, would the judge have needed to consider wider circumstances outside the will.

-  Corbett

27.1.   Mr Sussex submitted that the judge was wrong to say he could not go outside the express language of the alleged Will when the court in Corbett had done so.

27.2.   With respect to Mr Sussex, the judge’s proposition quoted at para. 23.3(b) was actually a paraphrase of Morritt LJ’s judgment at p.70C on the law governing conditional wills.  The court did look at surrounding circumstances in Corbett but that was because of the (successful) argument that the will there was merely what I have called a “conditionally-executed document”.

27.3.   In Corbett the deceased made a will in February (“the February will”) giving two farms, one to her nephew and the other to her niece, with the residuary estate to be shared between them.  Later she decided to make inter vivos gifts of the farms to them.  So she instructed solicitors to prepare documentation so that she could do two things simultaneously: (1) assign the farms to the nephew and niece respectively by way of deeds of gift; and (2) make a new will (without reference to the farms) giving the residuary estate to the niece’s two sons.

27.4.   The preparation of the deeds of gift took longer than the preparation of the new will.  The assignment of the farms by deeds of gift did not take place until December. 

27.5.   In the meantime however, the deceased signed a new will in September (“the September will”).  It did not say on its face that it would not come into operation until the farms were assigned to the nephew and niece. 

27.6.   The deceased signed it but did not date it, the contemporaneous documentary evidence⁴⁹ showing that “she does not wish it to take effect until the gifts are completed”. (Contrary to what the deceased was advised by her solicitors, it was common ground at trial that there was no requirement at law that a will should be dated to be operative, and the absence of a date does not invalidate a will⁵⁰).  

27.7.   Eventually the deeds of gift were signed on 25 December, and the date “26 December” was inserted in the will she had signed in September.

27.8.   After the deceased died, the nephew claimed that the September will was not validbecause when the deceased signed it in September, she had no testamentary intention at the moment of execution. 

27.9.   The judge at first instance found (1) the deceased had no testamentary intent to make an unconditional will when she signed it in September; but (2) she did have the intent to make a conditional will, the condition being the inter vivos gifts being effected, even though that was not stated on the face of the will; (3) extrinsic evidence was admissible to prove (1) and (2). He therefore held the September will took effect when the deeds of gift were signed in December (whether or not the date “26 December” had been inserted in the new will). The nephew appealed.

27.10.   The question formulated⁵¹ by the English court of appeal was:

“Given the requirement that every will must be made with immediate testamentary intent (‘animo testandi’ in the traditional phrase), can a testator by words or conduct outside the terms of the will impose upon his execution of the document some direction or condition which will postpone or qualify its operation?”

27.11.   The appellate court upheld the judge’s finding at (1).  It stated the relevant principles in this way⁵²:

“A will ... subjects the assets of the testator, from the moment of its execution, to a series of dispositions which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter according as the assets in the ownership of the testator during his lifetime may change in nature, value or extent. Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive ... regime will be called into play immediately and not postponed to, or made contingent upon, some future event or condition. That is why, surprising though the distinction may at first sight be to a layman, it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation”. (Emphasis added).

27.12.   The evidence in that case clearly showed that the deceased did not intend the September will to take effect immediately upon her signing it (in September).  In other words, it was merely a “conditionally-executed document” which was lacking in testamentary intent as she did not intend immediate dispositive effect.

27.13.   The niece had sought to argue that extrinsic evidence could be admitted to prove that the September will was valid as a conditional will (even though no conditions appeared on the face of the will), on the basis that “such evidence forms an essential part of the corpus of evidence going to animus testandi which is always admissible in probate proceedings”⁵³. 

27.14.   In response to this argument, Waite LJ held⁵⁴:

“It would be against the weight of authority and contrary to the express terms of the Wills Act 1837 to allow extrinsic evidence as to her intentions to be used to write into her will, for probate purposes, a condition which she has neither stated in writing nor signed”.

And (in the passage paraphrased by the judge) Morritt LJ held⁵⁵:

“Accordingly in my view there is no authority to support the view that a will may be made conditional otherwise than in accordance with the conditions expressed in it”.

27.15.   Accordingly insofar as the Daughter’s case was that the alleged Will was a conditional one, contingent on the Deceased’s death during his African trip, I agree with the judge that the absence of such condition expressed in the alleged Will was as a matter of law fatal to the argument.

Conditionally- executed document?

28.  I shall now address Mr Sussex’s submission insofar as he sought to argue that the judge had failed to consider whether the Deceased had the requisite testamentary intention to make a will.

29.1.   The judge did not deal with the issues

(1)   whether the alleged Will was a “conditional will”; and

(2)    whether there was testamentary intention and the alleged Will was only a “conditionally-executed document”

in separate sections of his Judgment, but there can be no doubt that the judge was aware of the need for testamentary intention.  He cited the law on testamentary intention at paras. 64 - 67 of the Judgment and expressly applied those principles.

29.2.   The judge was also aware that extrinsic evidence was admissible in considering testamentary intention, especially since it was expressly required under s.5(2)⁵⁶.  Otherwise he would not have needed to discuss any factual matters after finding that the alleged Will did not contain any express conditions.  The judge’s finding was that the Deceased did have testamentary intention when he executed the alleged Will.

(C)   Did the judge fail to consider, or was he wrong in rejecting, the “Doubts”? 

30.  It is convenient now to deal with Mr Sussex’s submissions that the judge had failed to consider, or he was wrong to reject, a number of matters which were referred to as “the Doubts” in Mr Chan’s closing submissions. 

31.  The judge did refer to some of these matters in his Judgment and generally speaking it is not necessary for a judge to address counsel’s submissions point by point.  In any event, I do not think any of those doubts would have affected the judge’s conclusions.

32.  Some of these “doubts” cast imputations on the Sister’s credibility and reliability as a witness.  Suffice it for me to say that the Sister was in the witness box for many hours over the course of two days, and the judge had ample opportunity to observe her.  I have also read the Transcript of her evidence in its entirety.  The substance of her evidence was consistent and her evidence was given in guileless language.  Her love for the Deceased and respect for an older and better-educated sibling was clear and explains herunquestioning compliance with his instructions and inaction after Madam Kwan had indicated she would not sign the alleged Will as witness. 

33.  Facts such as the sums in the Deceased’s bank accounts, that he had hitherto not made large donations to charity, errors in spelling or mis-writing names in English, his health and his father’s health at the time the alleged Will was executed do not detract from the existence of testamentary intention at all. 

34.  As for the impending trip to Africa, the Deceased may have been moved to make a will before commencing his holiday there.  In my view, that fact by itself supports, not detracts from, the finding of testamentary intention when he executed the alleged Will.  As the judge noted, the Deceased himself wrote out the words “Ho Chi Yin’s Will” and “when I died, will have my belongings to be arranged as follows”, followed by the dispositions set out therein. 

35.1.   It was argued on behalf of the Daughter that the Deceased’s instructions to the Sister that “如果我出咗事” (which may be translated as “if I encounter any mishap”, or “if something happens to me”) she was to take the alleged Will to the Kwans to sign as witnesses indicated that he did not have any testamentary intention when he executed it.  As I understand the argument, it was submitted that those instructions might have meant that the Deceased intended that if an accident (not immediate death) occurred on his trip, then (and only then) did he intend the alleged Will to operate by the addition of the Kwans’ signatures.  Therefore, it is argued, when the Deceased executed the alleged Will, he had no testamentary intention to make it immediately dispositive. 

35.2.   With respect, I do not accept this argument. 

(1)   Insofar as the argument was that the Deceased was referring to a mishap in Africa, the evidence was not that he said “if I encounter any mishap or if something happens to me during this trip” or “if I encounter any mishap or something happens to me in Africa”.  There is also the significant piece of evidence that he continued to treat the alleged Will as important after returning from his African trip.  He asked the Sister to keep it safely when she brought it to him (whilst taking back the other envelope of documents he had given her before the trip).  That shows that the Deceased knew it was not limited, or spent, in effect.  In my view, this evidence supports the finding that the Deceased’s testamentary intention was not limited when the alleged Will was executed.

(2)   In any event, the words used “如果我出咗事” have to be construed in the surrounding circumstances.  The Deceased had just written a document in which he had used the words “when I died”.  It is clear that he was referring to his death in euphemistic language when speaking with his sister.

(3)   It did not make sense for the Deceased to provide only for the possibility of an accident (not immediate death), and not for the possibility of immediate death.  Either could have happened.

(4)   Unlike the insertion of a date in the will in Corbett, the Deceased was not purporting to reserve to himself a means of controlling the operative time of the will.  It might have been different if he had instructed the Sister that she should bring the document to the Kwans for signature only when he gave her such instructions sometime in the future⁵⁷, but that was not the evidence.  Therefore as far as the Deceased was concerned, when he executed the alleged Will, it was to operate immediately and would be formalized when the Kwans signed it. 

36.  Further, in relation to the argument of no testamentary intention, there can be no argument that he had somehow withdrawn his intention at a later stage. He instructed the Sister to keep it safely whilst taking back the other envelope of documents, and he was never told that Madam Kwan had indicated her unwillingness to sign the alleged Will.

37.  As for the father’s death, this occurred in November 2006.  As the father had been bequeathed the WF flat, it was submitted on behalf of the Daughter that if the alleged Will were valid, the Deceased would have changed it to alter the bequest (eg by leaving it to Ho Chi Ming as he had mentioned at the lunch meeting).  However his inaction is not enough in my view to lead to a conclusion that the judge’s finding was wrong.  There was evidence that in the year between his father’s death and his own sudden death in a traffic accident, the Deceased was planning to sell the WF flat.  In that state of flux, it was only natural for him to have postponed any alteration in his will until the sale was settled.

38.  In conclusion, I do not think the judge’s finding of testamentary intention is challenged by any of the “doubts” submitted on behalf of the Daughter.

(D)   Did the judge err in “effectively” applying the civil standard of proof and in disallowing certain questions during the Sister’s cross-examination?

39.  Mr Sussex did not point to any passages in the Judgment that suggested that the judge misunderstood the standard of proof.  On the contrary, the judge referred to the higher standard of proof in various parts of the Judgment (paras. 8, 34, 49, 50, 51, 52, 53, 54, 74, 75, 81 and 92).  I should however point out an error when the judge referred to s.5(2) giving the court a “discretionary” dispensing power⁵⁸. The section can be said to be “remedial in intent ... to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will”⁵⁹, but there is no discretion.  If the court finds that the requirements set out in s.5(2) are satisfied, the document “shall” be deemed to be duly executed.

40.  Coming back to Mr Sussex’s argument that the judge had failed to “apply” the higher standard, in my view that is nothing more than a forensic complaint that the judge had not specifically addressed each and every point raised below, a task which is not required of the judge.

41.  As for certain questions being disallowed during the Sister’s cross-examination, it is of course correct that probate proceedings are inquisitorial but that does not give the parties carte blanche to pursue any line of questioning in the mode of a “fishing expedition”.

42.  Mr Sussex has referred to the following questions which were disallowed.

43.1.   First, concerning the occasions when the Sister, knowing that the Deceased did not want others to know, nevertheless discussed with third parties⁶⁰ the Deceased’s failed marriage and the Daughter leaving home⁶¹.

43.2.   It is clear from the Transcript that when the judge asked Mr Chan what was the relevance of this line of questions (which indicated the Sister was revealing the Deceased’s personal relationships to others despite his desire for privacy), counsel said he was “exploring the possibility that this so-called allegation of this strong desire on the deceased’s part to exclude Madam Wong and her daughter kind of with a vengeance inside is more her feeling projected onto the deceased”.

43.3.   I agree with the judge that the fact that the Sister told her family and a close friend about the Deceased’s relationship with his ex-wife and daughter was irrelevant to the question whether the Deceased wished to exclude them from benefitting after his death.  The alleged Will is there for all to see, and there can be no argument that the ex-Wife and the Daughter were not included in his dispositions.

44.1.   Second and/or third, concerning whether the Deceased decided to write the alleged Will at the lunch meeting and not beforehand⁶² and whether there were other conversations that led to the Deceased writing the alleged Will⁶³.

44.2.   These two lines of questions may be taken together.  At the trial, Mr Chan agreed that the first line was a “submission point”, but in any event it would make no difference whether the Deceased decided to make a will at the lunch meeting, or beforehand.  There was no dispute (by the time of trial if not before) that the alleged Will was written in the Deceased’s own hand and authenticity was no longer in issue, and the length of time the Deceased spent thinking about it is irrelevant to its validity.

44.3.   As for the second line, it would appear from the Transcript that Mr Chan was trying to suggest to the Sister that there were other discussions at the lunch meeting which led to the Deceased’s concern that his ex-wife and/or Daughter might benefit after his death.  Indeed, it was suggested that she might have initiated that concern⁶⁴.

44.4.   However at the same time Mr Chan denied that he was putting forward a new proposition (not previously part of his case) that the Sister had initiated the idea of writing a will⁶⁵. In any event, even if the Deceased had decided to write his will, as Mr Chan put it, “impromptu at the time”, that has no bearing on any of the issues. 

45.1.   Fourth, concerning whether the jewellery in the Deceased’s safe deposit box had any special or personal meaning to the Deceased⁶⁶.

45.2.   After the Sister had said she had no recollection about the items in the safe deposit box, Mr Chan pressed her as to whether she knew if any items had special meaning to the Deceased without suggesting what that meaning might be.

45.3.   In my view, the judge was entitled to stop this speculative line of questioning when no direction or purpose for it could be articulated. 

(E)   Did the judge err in failing to find that the Sister’s evidence of events and conversations relating to the alleged Will was not sufficiently credible and/or reliable to remove reasonable doubt or suspicion?

46.  As discussed in an earlier part of this Judgment, the judge had, after observing the Sister in the witness box for many hours, found her to be an honest and credible witness who had “nothing to hide from the court”⁶⁷.  Having read the Transcript, I take the view that the Sister’s evidence was in material parts consistent and convincing, and the judge was entitled to make such a finding. 

Order

47.  I would dismiss the appeal with costs.  The respondent’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Kwan JA:

48.  I agree with the judgement of Yuen JA.

Hon G Lam J:

49.  I agree with Yuen JA’s judgment.  I would only add a few words of my own in relation to one of the arguments advanced on behalf of the Daughter.  Mr Sussex SC submitted that the judge was wrong to hold that the proposition that the alleged Will was intended to cater for a contingency is untenable in law.[68]  It is important to appreciate that the point being dealt with there by the judge was that the alleged Will operated as a conditional will or a “gap” will, on the premise that the alleged Will was a document otherwise having testamentary effect.  The authorities show that, on that basis, extrinsic evidence cannot be considered “to make conditional a will which is on its face unconditional”.[69] 

50.  In a case under s. 5(2) of the Wills Ordinance, however, the antecedent question is whether the document concerned embodies the testamentary intentions of the deceased – a question on which extrinsic evidence is admissible.  If such evidence shows conditionality in the deceased’s intentions which is not reflected in the document, then I doubt if the document can still be said to satisfy the requirement of s. 5(2).

51.  The judge did not fail to consider this question.  He considered the evidence and the arguments in paras. 81 to 84 of the Judgment and came to the conclusion, on the facts, that the Deceased did not intend the alleged Will to take effect only upon a contingency as the Daughter contended.