CHAN KING HUNG as executor of the estate of CHAN FOOK LAI, deceased v. CHAN SIU KWAN PAULIE

HCAP 44/2019

[2021] HKCFI 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 44 OF 2019

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J U D G M E N T

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A.   INTRODUCTION

1.  In this action, the plaintiff seeks to propound a will made by the Deceased dated 30 January 2008 (“the Will”) in solemn form.  The plaintiff is the fourth son of the Deceased and was named as the sole executor of the Will.  This is the plaintiff’s summary judgment application to pronounce for the validity of the Will in solemn form pursuant to RHC Order 14.  

B.  THE BACKGROUND FACTS

2.  The Deceased was born in 1916 and passed away on 11 September 2018, at the age of 102.  He was married to Madam Yau Whai Ying (“Madam Yau”), who passed away in 2004.  The Deceased and Madam Yau had 5 sons.  Their youngest son also passed away in 2004.

3.  According to the plaintiff, the defendant is Madam Yau’s younger brother’s daughter, and the Deceased and Madam Yau started taking care of the defendant as their daughter when the defendant was around 8 years old.  On the other hand, the defendant claims that she is the “legal daughter” of the Deceased and Madam Yau.  It is right to record that the Deceased has been described by the defendant’s solicitors as the defendant’s “foster father” in one of their letters contained in the hearing bundle.

4.  According to the plaintiff (which the defendant does not dispute):

(1)  since around 2004, after the death of his youngest son and his wife, the Deceased occasionally mentioned to the family that he wished to make a will; and

(2)  in late 2007, the Deceased asked the plaintiff to set up a meeting with a solicitor Mr Darin Leung Wai Yuen (“Mr Leung”) of Messrs Darin Leung & Partners, who had known the Deceased for many years, to discuss the making of a will for the Deceased.

5.  According to Mr Leung, who has filed affirmation evidence on behalf of the plaintiff which the defendant does not appear to dispute, the Deceased gave him clear instructions on how he would like his estate to be distributed.  In giving his instructions, the Deceased made references to his own notes and papers.  The Will was subsequently prepared by Mr Leung’s firm and was executed by the Deceased in the presence of Mr Leung and Professor Danny Wong Shek Nam (“Professor Wong”) on 30 January 2008.

6.  Under the Will, the Deceased:

(1)  appointed the plaintiff to be his executor and trustee of the Will;

(2)  gave and bequeathed his 7,000 shares in Hip Lik Paper Products Factory Limited (“Hip Lik”) to his 4 sons, his 4 daughters-in-law and the eldest son of his eldest son in different proportions;

(3)  gave and bequeathed his 179 shares in Wah Hop Company Limited (“Wah Hop”) to his 4 sons, his 4 daughters-in-law, the eldest son of his eldest son, and the defendant in different proportions;

(4)  gave, devised and bequeathed the remainder of his properties to his executor and trustee upon trust to sell, call in, and convert the same into money and to hold the net proceeds on trust to pay his debts, funeral and testamentary expenses, and his residuary estate to be divided into 4 equal shares for each of his 4 sons absolutely.

7.  In the course of preparing his affirmation evidence to support the present summary judgment application, the plaintiff went through some of the Deceased’s old papers and found a piece of paper with some handwritten notes written by the Deceased and dated 23 September 2004 (“the Handwritten Note”).  It appears that Professor Wong signed at the bottom of the Handwritten Note as a witness on 4 October 2006.  Professor Wong was the Deceased’s old friend.  The Handwritten Note sets out how the Deceased at that time wished to distribute his shares in Hip Lik to various members of his family.  According to the plaintiff, he remembers being shown the Handwritten Note in around 2008 when the Deceased decided to make a will.

C.   THE RELEVANT PROCEDURAL HISTORY

8.  As mentioned earlier, the Deceased died on 11 September 2018.  On 24 April 2019, the defendant registered a caveat against the sealing of the grant in the Deceased’s estate.

9.  On 21 May 2019, the plaintiff applied for a grant of probate as the sole executor named in the Will.

10.  On 16 September 2019, the defendant as caveator entered an appearance against a warning served on her.

11.  On 4 December 2019, the plaintiff commenced the present action to propound for the validity of the Will in solemn form.

12.  On 16 January 2020, the defendant filed a Defence and Counterclaim herein.  The Defence and Counterclaim was handwritten in Chinese manuscript by the defendant (with certain words in English) and was filed without the assistance of any solicitors.  As a litigant in person, the defendant included a wide range of allegations, speculations, opinions and questions in her homemade pleading.  She also seeks to counterclaim against the plaintiff for a variety of claims which appear to be unrelated to the question of whether the Will should be propounded.  It is right to record that the defendant does not seek to propound a different will in her Counterclaim.

13.  The plaintiff filed his Reply and Defence to Counterclaim on 13 March 2020. 

14.  On 30 June 2020, the defendant, acting in person, filed a prolix document in Chinese manuscript called “Re Defence and Counterclaim” without previously obtaining leave of the Court or the plaintiff’s consent. 

15.  On 31 July 2020, the plaintiff issued a summons to (1) strike out the Defence and Counterclaim and the “Re Defence and Counterclaim” under RHC Order 18, rule 19 and (2) obtain final judgment for the relief claimed in the Statement of Claim under RHC Order 14. 

16.  The plaintiff’s applications are supported by three affirmations of the plaintiff and two affirmations of Mr Leung, which have verified the facts on which his claim is based and have stated that there is no defence to that claim pursuant to RHC Order 14, rule 2(1).  Whilst acting as a litigant in person, the defendant has filed one affirmation (written by her in Chinese manuscript) to oppose the plaintiff’s applications.  The defendant’s solicitors filed their Notice to Act for the defendant on 15 December 2020 (ie after the defendant has filed her pleadings and her affirmation evidence in these proceedings).

17.  At the substantive hearing of the plaintiff’s summons, Ms Lydia Leung on behalf of the plaintiff asked the Court to adjourn the plaintiff’s striking out application and only to determine the summary judgment application.  Mr Jevons Chan, counsel for the defendant, indicated that the defendant would not oppose the application to adjourn. Accordingly, the Court adjourned the plaintiff’s striking out application sine die with liberty to restore. 

D.  PROVING A WILL BY SOLEMN FORM IN SUMMARY JUDGMENT APPLICATION

18.  There is no dispute between the parties that the Court in an appropriate case may give summary judgment to propound a will in solemn form: Re Lau Siu Wah (deceased) [2005] 1 HKC 364 at §§13-19 (DHCJ J Poon); Re Estate of Yau Tung Hoi (unreported, HCAP 9/2016, 10 March 2017) §16 (Chow J).

19.  It is right to record that the defendant has not sought, whether in the numerous documents she has filed or in the submissions made through her legal representatives, to compel the plaintiff to propound the Will by the examination of the two attesting witnesses, namely Mr Leung and Professor Wong: see Re Lau Siu Wah (deceased) at §30 (DHCJ J Poon).  Cf Re Estate of Law Oi Chun [2021] HKCFI 517 at §§21, 27 & 40 (B Chu J).

E.   MATTERS NEEDED TO BE PROVED TO PROPOUND A WILL

20.  The general principles for the propounding of a will (in the absence of any allegation that the will was procured by fraud or undue influence) may be summarised as follows:

(1)  A person who propounds a will has the legal or persuasive burden of proving on balance of probabilities that:

(a)  there was due execution of the will;

(b)  the testator was of testamentary capacity; and

(c)  the testator knew and approved of the contents of the will.

See Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §§171-173 (Ribeiro PJ).

(2)  If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or 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.  See Nina Kung (above) at §176 (Ribeiro PJ).

21.  It is difficult to ascertain from the prolix and unfocused documents filed by the defendant what defence she puts forward to oppose the propounding of the Will.  At the Court’s request at the substantive hearing, Mr Chan confirmed that the defendant advances two defences to the plaintiff’s claim, namely (1) the Deceased did not have the necessary testamentary capacity at the time and (2) the Deceased did not know or approve the contents of the Will.

E1.    Due Execution of the Will

22.  Where one is concerned with a non-Chinese will, proof of “due execution” requires proof that the will was signed by the testator (or by some other person in his presence and by his direction), and that the statutory requirements for the formal validity of the will (set out in section 5(1) of the Wills Ordinance (Cap 30)) were complied with.  See Nina Kung (above) at §175 (Ribeiro PJ).

23.  The plaintiff has exhibited a true copy of the Will to his affirmation evidence and has deposed that the Will was signed by the Deceased in the presence of two witnesses present at the time (namely Mr Leung and Professor Wong).  There is also affirmative evidence from one of the witnesses (Mr Leung) to confirm that the Will was signed by the Deceased in the presence of him and Professor Wong.  The Will on its face records that (1) Mr Leung first read over and interpreted the Will to the Deceased in Cantonese before the Will was signed by the Deceased, (2) Mr Leung’s interpretation of the Will was done in the presence of Professor Wong, (3) the Deceased appeared to thoroughly understand and approve the contents of the Will, (4) the Will was signed in the presence of both Mr Leung and Professor Wong at the request of the Deceased, and (5) Mr Leung and Professor Wong both signed the Will attesting to matters in (1) to (4).  The defendant does not challenge, or raise any triable issue on, the due execution of the Will.  In these circumstances, it is clear that the plaintiff has proved that there was due execution of the Will.

E2.    Whether the Deceased had Testamentary Capacity

24.  The general principles on whether a deceased person had testamentary capacity to make a will may be summarised as follows:

(1)  The court should ask three questions to determine whether a person had testamentary capacity to make a will:

(a)  Whether the deceased was capable of understanding the nature of the act of making the will and its effects?

(b)  Whether the deceased was capable of understanding the extent of the property of which he was disposing?

(c)  Whether the deceased was able to comprehend and appreciate the claims to which he ought to give effect?

See Banks v Goodfellow (1870) LR 5 QB 549 at 565 (Cockburn CJ) & Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at §45 (Kwan JA).

(2)  The question of testamentary capacity is a practical question to be assessed holistically by reference to the whole of the evidence (and not confining to the medical evidence), and judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at §19 (Lam VP).

E2a.  Whether the Deceased was capable of understanding the nature of the act of making the Will and its effects

25.  The plaintiff submits that the Deceased was capable of understanding the nature of the act of making the Will and its effects.  To support this submission, he relies on what appears on the face of the Will (see paragraph 23 above). 

26.  Further, the plaintiff relies on the following affirmation evidence of Mr Leung to contend that the Deceased completely understood that he was making a will and the effect of doing so.  Mr Leung has also exhibited a contemporaneous handwritten note to show how he recorded the instructions he orally received from the Deceased at the time.

“5. A few days prior to 18 January 2008, the Deceased and the Plaintiff attended my offices for a short preliminary meeting of around 30 minutes (the “Meeting”). The Deceased informed me that he would like to make a Will. I explained to the Deceased the legal requirements of making a valid will in Hong Kong, and he indicated to me that he understood what I said. I took some handwritten notes during the meeting, and wrote down how the Deceased planned to distribute his shares in Hip Lik, and also how the residuary of his estate was to be distributed. There is now produced and shown to me marked “DL-1” a copy of my handwritten notes.

9. Shortly after the Meeting, I produced a preliminary draft of the Will. This draft did not specifically distribute the shares in Wah Hop, however, to be cautious I called the Plaintiff and asked whether the Deceased would like to treat Wah Hop as part of the residuary of the estate, or to distribute it specifically. The Plaintiff replied that he had to ask his father.

10. The Plaintiff later clarified to me that the Deceased would like to specifically distribute his 179 shares in Wah Hop, in a manner slightly different from his 7,000 shares in Hip Lik. In particular, the Deceased stated that he would like to specifically provide for the Defendant by bequeathing to her 15 shares in Wah Hop. During the conversation, I marked on a copy of said draft of the Will to mark down the Deceased’s instructions regarding the 179 shares in Wah Hop, and I also wrote down the Defendant's name and details. Now produced and shown to me marked “DL-2”a copy of said draft Will with my handwritten notes therein.

11. After preparing a new draft of the Will, I then attended the home of the Deceased on 30 January 2008, together with Mr. Danny Wong. I explained to the Deceased the contents of the Will line by line, and he indicated that he understood by nodding and stating his approval. I remember specifically confirming with the Deceased once again whether the residuary of his estate should be distributed amongst his 4 surviving sons only, and not to all his daughters-in-law, the Defendant or any of his grandsons, and the Deceased confirmed.

12. The Deceased then signed the Will, which Mr Danny Wong and I witnessed.  Mr Danny Wong and I then signed on the Will as well.  I confirm once again the Deceased had no problem understanding what I said before we appended our signatures to the Will, and was entirely clear and aware as to how he wanted his estate to be distributed.”

27.  Moreover, the plaintiff has also put in the following affirmation evidence to support his contention that the Deceased was capable of understanding the nature of the act of making the will and its effects.

“23.  In truth, my father was very alert, opinionated, proactive, and thoughtful in the few years before and after the execution of the Will, and certainly possessed the necessary testamentary capacity during the signing of the Will.  In preparation for this Affirmation, I have gone through some of my father's old papers, and found a piece of paper with the letterhead of “Thai Wa Trading Co.”, with some handwritten notes by my father and dated 23 September 2004.  Said piece of paper is now shown to me marked “CKH-10” (“Handwritten Note”).

24. The Handwritten Note also bears the name and handwritten inscription of Danny Wong, who was my late father’s old friend, and also a witness to his Will.  Danny Wong dated his inscription 4 October 2006.  I remember being shown this piece of paper in or around 2008, when my father decided he wanted to make a will. It can be seen that, already in 2006, my father had in his mind a specific way to distribute his shares in Hip Lik Paper Products Factory Limited (“Hip Lik”).

31. The bulk of my father’s wealth at that point in time laid in his shares in those two companies, Hip Lip and Wah Hop.  As of now, my father’s estate cannot be described as large at all.

33. Since around 2004, after the death of my youngest brother and my mother, my father had already occasionally mentioned to the family that he wished to make a Will.  In late 2007, he asked me to set up a meeting with Mr. Darin Leung of DLP to discuss the procedures of making such a Will.

34. The Will was signed a good 12 years ago, and my memory of that day is not impeccable. However, from what I remember, my late father and I had a short preliminary meeting with Mr. Darin Leung at his office a few days prior to 18 January 2008, where my late father brought along some of his own papers and explained to Mr. Darin Leung how he would like his estate to be distributed, describing specifically the way his proportioned his shares in Hip Lik, and the residuary of the estate. I do not recall exactly what papers my father had brought along to the meeting, but it might have included the Handwritten Note.

37. On 30 January 2008, Mr. Darin Leung and Danny Wong attended my father's home at the Lan Fong Road Property, and the Will was signed. Before signing, Mr Darin Leung explained the contents of the Will to my father, who indicated his approval and understanding.  I remember my father was specifically asked by Mr Darin Leung whether the residuary of his estate should be distributed amongst his 4 surviving sons only, and my father confirmed.

38. The Will was properly executed, and entirely according to my father’s Wishes.

39. I refer to paragraph 19(1) of My 1^st Affirmation, which referred to the detailed medical report of Dr Michael L. K. Lee exhibited as CKH-3.  Dr Lee who attended to my father since October 2006, emphasized that it was only in around June 2011 that my father developed confusion.  Dr Lee, who is a specialist in neurology, is reputable amongst his peers, and the Defendant has not provided any evidence to suggest that Dr Lee’s description of my father's mental function in or around January 2008 is in any way incorrect.”

28.  In the medical report of Dr Michael Lee dated 6 July 2020 exhibited to the plaintiff’s first affirmation, Dr Lee stated that the Deceased started consulting him in October 2006 (ie over a year before the Will was executed) and certified that the Deceased’s mental and cognitive function in January 2008 “was not noted to be significantly affected”.  He relevantly said in his report:

“I started to see the above named patient in Oct. 2006 when he presented with drug-induced Parkinsonism and depressive neurosis. He had a change in his medication + responded quite well … In January 2008, he developed signs of Parkinson’s disease with tremor of hands + jaws + some mild upper limb rigidity. His cognitive function (mental function) was not noted to be significantly affected. He was started on treatment for Parkinson’s disease in addition to treatment for depression + hypertension. In 2011, around June, he developed confusion, thought to be due to his medication. This responded to change of medication. …”

29.  At the hearing, Mr Chan on behalf of the defendant orally submitted that the Deceased simply signed the Will without knowing what was happening at the relevant time in January 2008.  In particular, Mr Chan referred to the defendant’s allegations in her affirmation that (1) the Will was in fact a scheme hatched by someone and was not the Deceased’s idea (“… 周詳策劃，一定不會是父親92歲能夠「度」到出來。策劃人的預謀亦非常周詳。 (亦不會是92歲的老父所為及意願)”) and (2) the Deceased had too much drugs related to his Parkinson’s disease, which caused him to have dementia, and was unable to understand the complicated contents of the Will (“在30th/January/2008再改遺囑時，已年屆92歲，已患有嚴重的柏金遜症多年。... 要打麻醉針 ... 所以，引致腦退化，簡單的事也要重複說很多次才能入耳。所以若如30th/January/2008 Last Will那麼複雜的數字遊戲，絕非一位92歲「患病老人」能夠理解及決定的。”).  Such submissions were advanced for the first time at the hearing and did not appear in his written skeleton submissions filed before the hearing. 

30.  It is right to point out that no medical evidence has been filed by the defendant.  Everything that she alleges in her affirmation in relation to the mental condition of the Deceased at the time when the Will was executed are merely bare assertions without any particularity. Indeed, Mr Chan accepted at the hearing that the defendant’s allegation that the Deceased had dementia at the time when the Will was made is an assertion and the factual basis for such an assertion has not been set out by the defendant.  He also submitted that the defendant needs to ask for discovery of documents in order to be able to produce any medical records.

31.  I have carefully considered the defendant’s allegations as summarised above, as well as the other allegations made in her affirmation evidence, regarding the Deceased’s physical and mental conditions at the time when the Will was executed in January 2008.  I have reminded myself that this is a summary judgment application and that it is inappropriate to conduct a mini-trial on the basis of affirmation evidence.  I have come to the view that the defendant’s assertion that the Deceased was suffering from dementia in January 2008 is unbelievable. 

(1)  First, such an assertion is contrary to some of her own allegations.  In §4(1) of her Defence and Counterclaim, the defendant asserts that she and the Deceased visited Messrs Darin Leung & Partners on 23 January 2008 to make a will, one week before the Deceased executed the Will on 30 January 2008.  On that occasion, the defendant alleges that the Deceased said to her that he would add the defendant to his will.  Both Mr Leung and the plaintiff have said in their affirmation evidence that the defendant never went to the offices of Messrs Darin Leung & Partners as alleged by the defendant.  Be that as it may, the allegation that the defendant went to Mr Leung’s office in January 2008 with the Deceased to make a will is flatly inconsistent with her own allegation that the Deceased had no testamentary capacity at that time.  No attempt was made by Mr Chan to explain this inconsistency at the hearing even though it was pointed out in the plaintiff’s submissions.

(2)  Further, the plaintiff has produced evidence to show that the Deceased made a payment in the sum of HK$520,000 by cheque to the defendant in October 2009, of which the defendant acknowledged receipt.  The defendant has not explained why she still acknowledged receipt of such a sum about 21 months after the Deceased executed the Will if she had thought that the Deceased’s mental condition at the time was impaired.

(3)  Moreover, the Deceased was a well-known photographer in Hong Kong.  The plaintiff has exhibited an article published in a magazine in January 2013 about the Deceased’s career as a celebrated photographer.  The article was written on the basis of an interview that took place in 2012 when the Deceased was 96 years old.  According to the article, the Deceased told the reporter during the interview what his daily routine was. The interview took place about 4 years after the Will was executed and it is not apparent from reading the article that the Deceased’s mental condition at that time was impaired.

(4)  Despite the evidence filed by and on behalf of the plaintiff to show that the Deceased’s cognitive function was normal as at January 2008, the defendant has not sought to rebut such evidence.  If the Deceased’s mental condition was genuinely impaired as alleged by the defendant, it should not be too difficult for the defendant to ask other family members of the Deceased to file an affirmation to support her allegation, even though she is unable to obtain the relevant medical evidence.  Yet, all the defendant relies upon to support her allegations are bare assertions.

32.  For these reasons, I consider that the plaintiff has established that the Deceased was capable of understanding the nature of the act of making the Will and its effects.

E2b.  Whether the Deceased was capable of understanding the extent of the property of which he was disposing

33.  The plaintiff submits that the Deceased was capable of understanding the extent of the property of which he was disposing. To support this submission, the plaintiff relies on the same evidence set out above in Section E2a. 

34.  In their affirmation evidence quoted in Section E2a above, both the plaintiff and Mr Leung confirm that it was the Deceased who had directly told Mr Leung how he wished (1) his shares in Hip Lik and his residuary estate to be distributed upon his death and (2) that he would want 15 shares in Wah Hop to be bequeathed to the defendant.  According to the plaintiff’s evidence, the Deceased’s shares in Hip Lik and Wah Hop represented the bulk of his estate at the time when the Will was executed.  The defendant has neither put forward any evidence to challenge any of the above-mentioned evidence from the plaintiff and Mr Leung, nor suggested that there was any asset comprised in the Deceased’s estate which is not covered by the Will.  In these circumstances, it seems to me that the plaintiff has satisfactorily discharged his burden to show that the Deceased was capable of understanding the extent of the property of which he was disposing under the Will.

E2c.   Whether the Deceased was able to comprehend and appreciate the claims to which he ought to give effect

35.  Third, the plaintiff submits that the Deceased was able to comprehend and appreciate the claims to which he ought to give effect. 

36.  In addition to the above-mentioned evidence quoted in Section E2a above, the plaintiff also relies on the fact that the Deceased had already started planning for the distribution of his shares in Hip Lik in 2006 (as evidenced by the Handwritten Note), which was revised and supplemented in the Will in 2008.  After the execution of the Will in 2008, there is undisputed evidence from the plaintiff that the shareholders of Hip Lik and Wah Hop decided to distribute the assets of the companies to all of its shareholders, and then to wind up the companies.  As a shareholder of these two companies, the plaintiff’s undisputed evidence is that the Deceased received substantial cash, which was then distributed to the rest of the family according to the Deceased’s wishes and with the family’s consent.  And it is also undisputed that the defendant and her daughter received cash from the Deceased as a result.  Ms Leung relied on these additional matters to submit that the Deceased was able to understand and appreciate at time of the execution of the Will in 2008 who should be provided for from his estate.

37.  It is right to acknowledge that the Will on its face sets out different family members as specific legatees and the relationship between each of the family members and the Deceased.  According to Mr Leung’s evidence (which is not challenged by the defendant), such information was obtained by Mr Leung directly from the Deceased.

38.  On the basis of the above-mentioned evidence produced by the plaintiff, which is undisputed by the defendant, it seems to me that the Deceased was able to recall in 2008 the family members whom he considered would be fitting objects of his estate, and had an understanding to comprehend their respective relationship to himself.  Indeed, the defendant has not suggested that the Will has left out any person for whom the Deceased would be expected to make provision when disposing of his estate.

39.  In these circumstances, I consider that the plaintiff has discharged his burden to show that the Deceased was able to comprehend and appreciate the claims to which he ought to give effect.

E2d.  Conclusion on Deceased’s testamentary capacity

40.  Having carried out the holistic assessment of the evidence produced by the plaintiff as mandated by the Court of Appeal in Re Estate of Lau Heung (see paragraph 24(2) above), which to a very large extent is unchallenged by the defendant, it seems to me that the plaintiff has satisfactorily shown that the Deceased was of testamentary capacity at the time when the Will was executed, and that the defendant has failed to raise any triable issue on this question.

E3.    Whether the Deceased Knew and Approved the Contents of the Will

41.  In Re Estate of Au Kong Tim (above), Cheung JA at §2.2 said “[it] has been repeatedly said in the authorities that the fact that a will is prepared by a solicitor and is, on the face of it, properly executed by a testator in front of the solicitor after having had the contents read over to him provides strong evidence of the testator’s knowledge and approval of the contents of the will and represents the testator’s intention at the moment he executes the will”.  This appears to be a legal presumption. 

42.  In Re Estate of Leung Heung (above), Lam VP (giving the judgment of the Court) at §76 referred to the trial judge’s approach of not acting on the presumption that knowledge and approval would be established upon proof of due execution and testamentary capacity, but instead looking for affirmative evidence that the deceased knew and approved the contents of the will, adopting the approach that the court would be vigilant and jealous in examining the evidence in this respect.  In the end, the Court of Appeal at §84 considered that the trial judge did not err in finding knowledge and approval in the way he did.

43.  In this application, in assessing whether the Deceased knew and approved the contents of the Will, I will examine the available evidence to see if the plaintiff has discharged the burden of proving knowledge and approval, as opposed to relying only on the legal presumption.

44.  Based on the evidence adduced by the plaintiff as quoted in Section E2a above, the plaintiff submits that the Deceased knew and approved the contents of the Will.  In particular, the plaintiff relies on the fact that Mr Leung had explained the contents of the Will to the Deceased, and that the Deceased had indicated his approval and understanding of such contents, before signing the Will.  To a large extent, this is reflected on the signature page of the Will.  The defendant has not produced any direct evidence to dispute the plaintiff’s evidence in this regard.  I have already set out my views on the defendant’s bare assertions that the Deceased had no knowledge about the contents of the Will in Section E2a above and they will not be repeated again.

45.  In these circumstances, I believe the plaintiff has discharged his burden to show that the Deceased knew and approved the contents of the Will at the relevant time, and there is no triable issue raised by the defendant on this issue.

E4.    Defendant’s Reliance on the Non Compliance of the “Golden Rule”

46.  On behalf of the defendant, Mr Chan devoted much time in his submissions on how the so-called “golden rule” had not been followed.  In his written skeleton argument, Mr Chan described the defendant’s opposition to the present summary judgment application as follows:

“… the defence of the Defendant lies in the undisputed fact that the “golden rule” in assessment of testator’s testamentary mental capacity, and knowledge and approval of the contents of the will was not followed, and that the legal burden of proof rests on the Plaintiff to prove testamentary capacity, which gives rise to the need for further inquiries and discovery of, inter alia, appropriate medical evidence.”

47.  The “golden rule” was coined by Templeman J in Kenward v Adams (1975) The Times 29 November 1975.  Re Estate of Au Kong Tim (above), Cheung JA at §2.6 summarised the “golden rule” as follows: “when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator”.

48.  The “golden rule” does not lay down the law and merely contains prudent guidance for solicitors: Re Estate of Au Kong Tim (above) at §2.7 (Cheung JA).

49.  Even if the “golden rule” is not followed, it does not necessarily mean that the proponent cannot show (1) due execution of a will, or (2) that the testator had testamentary capacity, or (3) that the testator knew and approved the contents of the will.  The mere non-compliance of the “golden rule” does not by itself demonstrate the invalidity of a will.  Whether or not the proponent succeeds in propounding a will depends on the facts and evidence of the case and whether he or she can discharge the necessary burden in proving the requisite elements.  See Re Estate of Au Kong Tim (above) at §2.7 (Cheung JA); Re Estate of Wong Yin Sheung [2019] HKCA 452 at §43 (Kwan VP); Re Estate of Lau Heung (above) at §18 (Lam VP).

50.  In the present case, the Deceased’s execution of the Will was not witnessed or approved by a medical practitioner.  To that extent, the defendant is correct to say that the “golden rule” has not been complied with.  Nonetheless, in the light the evidence adduced by the plaintiff in support of his summary judgment application (as analysed above), and given the absence of cogent evidence from the defendant to raise any triable issues on the Deceased’s testamentary capacity and his knowledge and approval of the contents of the Will, the mere non-compliance of the “golden rule” is not sufficient to enable the defendant to be given leave to defend.

51.  For the avoidance of doubt, nothing in this decision should be construed to undermine the usefulness of the “golden rule”. The “golden rule” remains to be a guide to good and prudent practice for solicitors, the observance of which would help to avoid or minimise disputes and to ensure that the basic requirements for the validity of a will are not overlooked: see Re Estate of Au Kong Tim (above) at §76 (Kwan JA); Re Estate of Wong Yin Sheung (above) at §43 (Kwan VP).

G.  DISPOSITION

52.  For the above reasons, I give summary judgment for the plaintiff and pronounce for the validity of the Will in solemn form of law.

53.  I also make an order nisi that (1) the defendant shall pay the plaintiff the costs of and occasioned by the plaintiff’s application for summary judgment, to be taxed on a party and party basis if not agreed, and (2) the plaintiff’s costs, to be assessed on a trustee basis, which are not recoverable from the defendant, shall be paid out of the estate of the Deceased.