CHAN WAI MING v. XIE WEIQIN AND OTHERS

HCAP 8/2016

[2022] HKCFI 3327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2016

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J U D G M E N T

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A. OVERVIEW

1.  Mr Chan Mau Chuk (the “Deceased”)  passed away on 8 May 2015.  This is the trial of the probate action concerning the validity of the last will of the Deceased executed on 5 February 2015 (the “Will”).

2.  The parties to these proceedings belong to the two families of the Deceased:

(1)  The Plaintiff and the Plaintiff’s elder sister Ms Chan Chui Fong (陳翠芳)  (“P’s Sister”)  are children of the Deceased with his ex-wife, Madam Cheng Yee Yum (“P’s Mother”).  In late 1996, the divorced proceedings between the Deceased and P’s Mother commenced and in 2001, the decree absolute was granted.  P’s Mother had the care, custody and control of the Plaintiff and P’s Sister.

(2)  On the other hand, the 1^st Defendant and the Deceased, though unmarried, had been living as if they were husband and wife since 1996 until his demise in 2015.  The 1^st Defendant had all along been held out and recognised by the Deceased as his “wife” and is recorded on Deceased’s genealogy book as his “second wife” (繼妻).  The 2^nd and 3^rd Defendants are the daughter and son of the Deceased and the 1^st Defendant born out of this relationship.

A1.   The Will

3.  The Will, consisting of 3 pages only, was prepared and typewritten in plain Chinese by an unqualified person, Mr Samson Mak Yiu Cheung (麥耀祥)  (“Mr Mak”).[1]  It was signed by the Deceased in the presence of two witnesses, namely, Mr Mak and Mr Lee Wai Keung (李偉強)  (“Mr Lee”).[2]

4.  The content of the Will is self-explanatory: (1) the 1^st Defendant was appointed as the sole executrix; (2) A landed property situated at Shenzhen, PRC is bequeathed to the Plaintiff; (3) A landed property situated at 中華人民共和國廣東省深圳市保稅區1生活區1棟101 (“P’s Sister’s Property”)  is bequeathed to P’s Sister; (4) A landed property situated at Shenzhen, PRC is bequeathed to the 2^nd Defendant; (5) A landed property situated at Lot No 862 in DD 77, which is held by the Deceased’s elder sister, Ms Chan Choi Fung (“Deceased’s Sister”)  on trust for the Deceased, is bequeathed to the 3^rd Defendant; (6) The properties held by the Deceased’s mother Ms Poon Yuk Choi (“Deceased’s Mother”)  on trust for the Deceased are bequeathed to the 3^rd Defendant; and (7) The residuary estate is bequeathed to the 3^rd Defendant.

5.  It is noteworthy that each of the Plaintiff’s children (the Plaintiff, P’s Sister, the 2^nd and 3^rd Defendants)  was made a specific devisee in the Will.

A2.   The Plaintiff’s challenges

6.  This is plainly a case in which the Plaintiff’s pursuit of the probate action is driven by envy.  The Plaintiff and P’s Sister were not coy about revealing their dissatisfaction with the 3^rd Defendant being bequeathed the residuary estate of the Deceased under the Will.[3]

7.  The Plaintiff’s grounds disputing the validity of the Will are pleaded in §§39-41 of the Statement of Claim (“SOC”).  The Plaintiff mounts a challenge to all three requirements of validity, relying on all the matters pleaded in §§39-41 of the SOC for each requirement.  This challenge has clearly gone beyond the realm of putting the Defendants to strict proof.  Indeed, at paragraph 42 of the SOC, it was expressly pleaded by the Plaintiff that: “Further or alternatively and without prejudice to the matters pleaded in paragraphs 39, 40 and 41 above, the Plaintiff further puts the Defendants to strict proof of the due execution of the Alleged Will” (Emphasis added).

8.  On the question of due execution, the Plaintiff specifically relies on two matters:

(1)  The Plaintiff claims that while the Will was alleged to be executed in Hong Kong on 5 February 2015, the Deceased was in Shenzhen to undergo a colonoscopy at a hospital: SOC at §39(1).

(2)  It is further alleged that Mr Mak represented at the consolation feast of the Deceased on 16 May 2015 that the Deceased approached him in late January 2015 with a view to preparing a will because the Deceased had been diagnosed with colorectal cancer.  However, the Deceased was only diagnosed with colorectal cancer after 10 February 2015: SOC at §§30, 39(2)-(3).

9.  At this juncture, it should be noted that the Plaintiff put to Mr Lee during cross-examination on the morning of Day 9 a positive case that the execution of the Will on 5 February 2015 had not happened.

10.  On the question of testamentary capacity, the Plaintiff specifically relies on the fact that having undergone the colonoscopy under anaesthesia at the hospital in Shenzhen, the Deceased did not and could not have sound mind and/or sufficient capacity to deal with and appreciate the various dispositions of properties in the Will on 5 February 2015: SOC at §40.

11.  On the question of knowledge and approval of the content of the Will, the Plaintiff specifically relies on the following matters: (1) the Plaintiff, P’s Sister, the 2^nd and 3^rd Defendants all maintained a close relationship with the Deceased, but the Will makes substantially uneven distribution in favour of the 3^rd Defendant;[4] (2) The Deceased allegedly has one more son named Wong Chun To (王晉陶)  (the “Alleged Son”)  with a mistress, Ms Liao Linmao (“Ms Liao”)  and the Alleged Son does not receive any testamentary gift;[5] (3) The name of the Deceased’s Mother on the Will was allegedly to be wrongly written as “潘玉財”, instead of “潘玉才”;[6] (4) The Deceased had various properties held on trust by the Deceased’s Mother and other relatives, but those properties were not but could have been identified;[7] (5) The Deceased and the 1^st Defendant had indicated to a friend Mr Cheng Yip (鄭業)  on 16 April 2015 that the Deceased did not make a will;[8] and (6) The Deceased wished to leave the recycling business to the Plaintiff.  However, there was no mention of the recycling business in the Will.[9]

12.  The Plaintiff therefore claims that the Will is invalid and the Deceased died intestate, and that he is entitled to the grant of the letters of administration of the Deceased’s estate: SOC at §45.

13.  The Defendants submit that having heard the evidence adduced by the parties at trial, this court should have no difficulty in finding that the Plaintiff has failed to discharge his evidential burden to adduce sufficiently cogent evidence to challenge the validity of the Will, as the evidence adduced by the Plaintiff was mostly incredible, unreliable and/or irrelevant.  On the other hand, there is sufficient evidence to show on balance of probabilities that the Will was duly executed, the Deceased was of testamentary capacity and he knew and approved of the content of the Will.

B.   GENERAL CREDIBILITY OF THE FACTUAL WITNESSES

14.  The parties called a total of 8 factual witnesses.  The Plaintiff called (1) the Plaintiff himself, (2) P’s Sister, and (3) the Deceased’s Sister as factual witnesses; and the Defendants called (4) Mr Mak, (5) Mr Lee, (6) the 2^nd Defendant, (7) the 3^rd Defendant, and (8) the 1^st Defendant as factual witnesses.  In respect of expert witnesses, the Plaintiff called Dr Bertrand C H Leung (“P’s Expert”), whereas the Defendants called Dr Tang Wai Tak, Henry (“Ds’ Expert”)  on the Deceased’s health and mental condition from late January 2015 to 5 February 2015.

15.  The Defendants submit that the Plaintiff’s factual witnesses’ evidence is self-serving and tailored to fit the Plaintiff’s case.  Their evidence is unreliable and/or incredible and very often contradicted by incontrovertible evidence.  Their evidence should be rejected.

B1.   Evidence of the Plaintiff and P’s Sister

16.  It is obvious that the evidence of the Plaintiff and P’s Sister was tailored for this action and they must have put their heads together in coming up with their evidence.

17.  Not only had the Plaintiff and P’s Sister conferred with each other in preparing their respective witness statement[10], they must have also discussed what they were going to say at the witness box before testifying at the trial.  This is illustrated by the following examples:

(1)  Notwithstanding that they did not state how frequently they saw the Deceased in the early 2000s in their witness statements, they then both answered in cross-examination that they had seen the Deceased once or twice a month.[11]  Had this been the case, there was no reason for them not to have mentioned it in their witness statements.

(2)  When being asked about the Deceased suffering from a stroke in March 2015, both “coincidentally” asserted that they did not know that a stroke was a serious medical condition.  This makes no sense for persons of their age.

(3)  Notwithstanding that it was only mentioned that Mr Mak distributed a name card of Lam Fung & Co at the funeral repast on 16 May 2015 in P’s WS at §56, both the Plaintiff and P’s Sister said at trial that Mr Mak gave them an additional name card of Chan & Chan.

B2.   The Plaintiff’s evidence

18.  The Plaintiff’s evidence was contradictory, inconsistent, evasive and wholly incredible.  The lack of credibility of his evidence was demonstrated by his answers and explanations which made no sense and/or contradicted the other evidence during cross-examination, especially when he was questioned in those areas which were not favourable to his case.  For example:

(1)  When he was asked why the Plaintiff failed to produce any of his photographs showing the Deceased and him together (other than the group family event photos), his excuses were: “the Deceased did not like taking photos” (爸爸唔鍾意)  and “he rarely took photos” (嗰時好少影相).  These excuses do not sit easily with the photographs produced by the Defendants.

(2)  When he was asked why he did not go to Shenzhen to visit the Deceased who had a mild stroke in March 2015, he sought to justify his indifferent attitude by giving an absurd answer that he did not know that a stroke was a serious medical condition.

(3)  When he was asked why he would record the event, inter alia, at Wujing Guangdong Zongdui Hospital (“WGZ”)  on 16 April 2015, and the pronouncement of the Will by Mr Mak on 2 June 2015, he absurdly said that he had a habit of audio-recording randomly.  This answer was contradicted by P’s Sister’s evidence that she and the Plaintiff agreed that they should record what would happen.  On 2 June 2015, P’s Sister even indicated to the Plaintiff that he should record the pronouncement of the Will.

(4)  The Plaintiff was even able to recite the Deceased’s identity card number for the reason that he was responsible for obtaining his death certificate.

19.  Further, the Plaintiff often sought to downplay the evidence which was unfavourable to him, and exaggerate the evidence which appears to be favourable to his case.  For examples:

(1)  While the Plaintiff stated in §18 of P’s WS that he always knew the Deceased to be irritable and sometimes violent (脾氣暴躁，一發脾氣就可能動武), but in order to bolster his case that the Deceased treated him very well, in cross-examination he even described the Deceased as an amiable person (和藹可親).

(2)  The Plaintiff suggested for the first time during cross-examination that he had been staying in Shenzhen and stayed with the Deceased at WGZ daily since around 25 or 26 March 2015.  If this were true, it is difficult to explain, for example, why he did not ask the treating doctor directly as to the Deceased’s condition.  The Plaintiff was clearly exaggerating the time he had spent in the hospital and was making up evidence to show his ‘filial piety’.

(3)  In respect of an alleged event at WGZ on 3 April 2015 that the Deceased was supposed to give $15,000 red pocket to the Plaintiff, the Plaintiff first said during cross-examination that it was the Deceased who told him personally in front of other relatives.  However, when he was confronted that her girlfriend must also have heard the same, the Plaintiff shifted his account, claiming then that he only received the message from his aunt afterwards.

(4)  Shortly before the lunch break of Day 2, the Plaintiff suggested that the tombstone of the Deceased’s Mother might have been made recently (唔知道最近整定咩)  and it was just a matter of finding people to inscribe it (搵人刻嘅姐).  However, after he was shown the photographs of the tombstone, the Plaintiff admitted that it was situated next to the Deceased’s grave.

20.  The Plaintiff has every motive not to tell the whole truth to the court.  What the Plaintiff wants is a larger share in the Deceased’s estate.  It is clear that the Plaintiff was taking steps to prepare for this probate action even before the Deceased passed away.  The Plaintiff’s audio-recording speaks for itself.  He even concocted a conspiracy theory that the 1^st Defendant was the one who forged the Will in order to blacken her.

21.  In the premises, I agree that the Plaintiff’s evidence should be rejected or should be given little weight.

B3.   P’s Sister’s evidence

22.  The evidence of P’s Sister was no better than her brother’s.  She is also not a credible or truthful witness.  Her evidence was again self-serving.  Not only does she fully support the Plaintiff to challenge the Will, but she also stands to gain if the Plaintiff’s challenge is successful.  Her evidence must therefore be approached with caution.

23.  P’s Sister has also given untruthful evidence in respect of the tombstone of the Deceased’s Mother.  While she was correct that the said tombstone had been rebuilt, her evidence that (1) the original name inscribed on the old tombstone was “才”, (2) that some relative(s)  suggested to use “財” instead of “才” on the new tombstone, and (3) some relative(s)  objected to this suggestion,[12] was obviously something concocted by her as the old tombstone was clearly shown in the video of the Deceased’s burial (Exhibit D2).

24.  Her evidence was highly questionable as she kept on adding new matters to her evidence and sought to use her own carelessness as an excuse for not mentioning them before.  Her new evidence includes that (1) she and the Plaintiff had seen the Deceased once or twice a month in the early 2000s, and after she returned from the US to Hong Kong; (2) in around 2013, the Deceased told the Plaintiff that he would pass his business to the Plaintiff in front of her and the 1^st Defendant in a stone house at Fanling; (3) the Deceased reserved a room for the Plaintiff to reside in the new residence in No 78, Kong Ha Village; (4) sometime after 29 March 2019, the Deceased said in front of a number of relatives, including the Plaintiff, that the 1^st Defendant wanted him to die; (5) on 16 May 2015, Mr Mak gave her two name cards at a room in the restaurant where the funeral repast was held; (6) she believed that Mr Mak and the 1^st Defendant conspired together to forge the Will; and (7) her evidence as summarised in paragraph 23 above.

B4.   The Deceased’s Sister’s evidence

25.  In respect of the Deceased’s Sister’s evidence, the court again has to approach it with great caution.

26.  The Deceased’s Sister received high school education.  However, her evidence about her mother’s name on the old tombstone was totally destroyed by the burial video Exhibit D2.

27.  In particular, on Day 4, she said and wrote down clearly during her examination-in-chief that: (1) in respect of the name on the genealogy book Exhibit D1, “潘氏財娘唔係我媽媽個名” and the name should be written as “潘玉才”; (2) in year 2009, when she visited the graveyard for the second time, the name on the tombstone as built by the Deceased for the Deceased’s Mother was “潘玉才”; (3) when the Deceased was buried at the graveyard in October 2015, what was inscribed on the tombstone of the Deceased’s Mother was “才係才能個才” and without the “貝字邊”; and (4) when she swept the grave of the Deceased in recent years, the name on tombstone was changed to “潘玉財”.

28.  During cross-examination in the morning of Day 5, she also confirmed again that what she said in examination-in-chief was truthful and accurate.  She wrote that the “才” on the tombstone she saw on the day when the Deceased was buried was “才” (Exhibit P1), and she even confirmed in front of the Deceased’s photo that what she said was truthful.

29.  It transpired that her evidence was a complete lie.  As it is shown in Exhibit D2, the name inscribed on the tombstone at the time when the Deceased was buried was “顯妣玉財潘氏…”. After she was shown the video, she then changed her evidence and claimed that she was old and did not remember it clearly.

30.  After she got caught on this false evidence, the Deceased’s Sister had been extremely evasive so that the court needed to warn her that she was giving evidence on oath.  In the circumstances, the Deceased’s Sister’s evidence should also be rejected or should be given very little weight.

B5.   The Defendants’ factual witnesses

31.  In contrast, the evidence of the Defendants’ witnesses was consistent, credible and straightforward and they were unshaken in cross-examination.  There is no reason why their evidence should not be believed.

32.  It is worth highlighting that Mr Mak and Mr Lee, who witnessed the Deceased’s execution of the Will, have no interest in the outcome of this action whatsoever.  Both of them had no or little acquaintance with the 1^st, 2^nd, or 3^rd Defendants.[13] They are independent witnesses who have no motive to lie.

B5.1  The credibility of Mr Mak, Mr Lee and the 1^st Defendant

Suggestion of fabrication

33.  At §39 of the SOC, it was expressly pleaded that: “… the Alleged Will was not executed by the Deceased, whether as alleged or at all”.

34.  In his Closing Submissions, the Plaintiff submits that Mr Mak, Mr Lee and the 1^st Defendant’s evidence concerning the preparation and execution of the Will was all fabrication and involves a conspiracy among them.  Specifically, it is alleged that Mr Mak “was trying to make up a story”[14] while Mr Lee “was involved in Mak’s lies”,[15] whereas the 1^st Defendant’s account on 5 February 2015 was “made up by the 1^st Defendant in an attempt to support Mak and Lee’s assertions”.[16]  The necessary implication of such theory is that the Will was also fabricated.

35.  First, the principle explained in Re H & Others (Minors)  (Sexual Abuse: Standard of Proof) [1996] AC 563 is thus applicable.  At paragraphs 182 and 184 of Nina Kung v Wang Din Shin (2005)  8 HKCFAR 387, Ribeiro PJ said this:

“182. The majority in the House of Lords in Re H & Others (Minors)  (Sexual Abuse: Standard of Proof) [1996] AC 563 held that the civil standard requiring proof on a balance of probabilities continues to apply where, in civil proceedings, an allegation is made of criminal(or similarly serious)  misconduct, but explained that such standard is to be applied flexibly, factoring in the inherently greater improbability of serious misconduct as compared with lesser forms of misconduct,and therefore requiring the person bearing the burden of proving the allegation to prove it with evidence of a commensurate cogency. The well-known passage in the speech of Lord Nicholls of Birkenhead states as follows:

‘The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.’ (at p 586)

…

184.  Nevertheless, in a case like the present, the Re H & Others (Minors)  (Sexual Abuse: Standard of Proof ) [1996] AC 563 principle is applicable by analogy, operating not as defining a standard of proof, but imposing a standard of cogency which must be satisfied before evidence is considered sufficient to raise a case (here of forgery and of an associated conspiracy)  for consideration by the court.  When weighing up and assessing the probabilities in relation to the evidence adduced by the respondent as evidence of forgery, the court must bear in mind the seriousness of the misconduct alleged, recognizing that it carries an inherent degree of improbability.”

36.  Secondly, the witnesses were never cross-examined on or distinctly confronted with this theory of conspiracy and/or fabrication.  In particular:

(1)  While the Plaintiff put to Mr Mak that certain part of his evidence or testimony was not what had happened,[17] the Plaintiff has never suggested to him that he was making up a story overall, nor that he had colluded with Mr Lee and the 1^st Defendant to fabricate the evidence.

(2)  While the Plaintiff did put to Mr Lee that his account on the execution of the Will was not truthful and that he had talked to Mr Mak about the content of his witness statement before he made it, this is not the same thing as Mr Lee having been involved in Mr Mak’s lies.  It was never put to him that Mr Mak’s evidence was false.

(3)  In the same vein, it was not put to the 1^st Defendant that she gave false evidence in order to corroborate Mr Mak and Mr Lee’s evidence.

37.  Thirdly, this conspiracy theory is just unreal. It is most unlikely for these 3 witnesses, who have no personal financial interest in this probate action, to conspire together to give false evidence.  The Plaintiff is unable to adduce or point out any evidence that could rebut these inherent improbabilities.

38.  In fact, the Plaintiff’s theory makes little sense in light of the objective evidence:

(1)  It is the Plaintiff’s case that the 1^st Defendant knew that the name on identity card was “才能個才”.[18]  Objectively, the will of the Deceased’s Mother (which bears the name “潘玉才”)  was also in the 1^st Defendant’s possession.  If there really had been a conspiracy between Mr Mak and the 1^st Defendant and the Will was a product of fraud, one would have expected the fraudsters to use the “official” name in the Will.  Why would they have left this fault to be picked up by the Plaintiff?

(2)  The theory also does not sit easily with the contemporaneous record.  If the 1^st Defendant had conspired with Mr Mak and Mr Lee to fabricate the Will on 5 February 2015, it makes no sense for the 1^st Defendant to represent to Mr Cheng on 16 April 2015 that the Deceased did not make a will notwithstanding her request.  In fact, it was the 1^st Defendant’s own preference that all children including the Plaintiff should be present if the Deceased was to make a will because she wanted to avoid trouble.[19]  This militates against any suggestion that she would have conspired with others to fabricate the Will.  There is also no explanation as to why Mr Mak or Mr Lee would have agreed to fabricate the Will.

The alleged lack of credibility of Mr Mak’s Evidence

39.  The Plaintiff has made a lot of unfounded criticisms of Mr Mak’s evidence.

40.  First, the criticisms as to Mr Mak’s evidence on his experience with solicitors’ firm have simply ignored the answers given by Mr Mak:[20]

(1)  The Plaintiff ignored Mr Mak’s clarification during cross-examination that “drafting documents when necessary” in his answers to interrogatories referred to his reducing clients’ oral instructions into writing for the preparation of affirmation and witness statements.[21]

(2)  The Plaintiff ignored the context of Mr Mak’s evidence.  When he talked about helping the members of the community to handle matters relating to wills, he meant that he would bring them back to his firm.  It was never his evidence that he would have personally drafted the wills for those members.

(3)  The Plaintiff ignored Mr Mak’s reason for denying that he provided free legal consultation.  He explained that he was unqualified to do so.[22]  There is no inconsistency between answering some basic legal questions and not providing free legal consultation.

41.  Secondly, it is difficult to follow the Plaintiff’s criticisms of Mr Mak’s evidence on his relationship with the Deceased:[23]

(1)  §2 of Mak’s WS that “陳先生有什麼法律問題都會找本人” must be understood in the context that it was his own impression.  It is difficult to see how the Deceased had instructed solicitors to handle conveyancing matters unbeknownst to Mr Mak would mean Mr Mak’s evidence was made up.

(2)  Cross-examination is not a test of memory.  There is nothing incredible when Mr Mak was unable to tell an exact figure or a pattern, or to particularise each and every transaction he assisted the Deceased for around a decade.  One fails to see any inconsistency in the matters contained in §35 of the Plaintiff’s Closing Submissions as the Plaintiff has sought to suggest.

(3)  As a clerk of solicitors’ firm, Mr Mak’s behaviour of answering questions if possible and providing assistance to the Deceased, albeit without the requisite legal knowledge and qualification, was not unusual or uncommon.  Those were certainly what one would expect clerks in solicitors’ firms would ordinarily do for developing business.

(4)  Further, contrary to the Plaintiff’s suggestion,[24] Mr Mak and the Deceased in fact had a close friendship with each other.  This is evidenced by Mr Mak’s uncontradicted evidence that the Deceased had gifted two tons of red brick clay for sumo world game tournament as a gesture of support.[25]

42.  Thirdly, the Plaintiff’s criticisms at §§39 to 41 of the Plaintiff’s Closing Submissions on the phone call on 20 January 2015 are without any substance.  Given that Mr Mak had handled or assisted wills matters of members of the community, Mr Mak certainly would have some ideas of what were required.

43.  Fourthly, the Plaintiff’s contention at §§42 to 49 of the Plaintiff’s Closing Submissions that it is “inherently illogical” for the Deceased to request Mr Mak to draft the Will is misconceived:

(1)  There is no evidence as to whether the Deceased was a businessman who was so sophisticated that he would not have trusted Mr Mak.

(2)  It is a quantum leap to say because the Deceased had instructed solicitors to handle conveyancing matters, it was impossible or illogical for the Deceased to request Mr Mak to draft a will for him.

(3)  Mr Mak’s lack of skills to draft formal legal document was neither here nor there, because there is no evidence that the Deceased knew the same.

(4)  The constipation of the Deceased was sufficiently serious to cause him concern since early January 2015, and the Deceased felt very bad on 4 February 2015.  This explained why the Deceased wanted to make a will, and also why he called Mr Mak on 4 February 2015 saying that he wanted to execute the Will the day after.

(5)  The Plaintiff is also wrong to assert that Mr Mak “never… made any enquiry about the health of [the Deceased]”.[26]  It was Mr Mak’s evidence that they had exchanges on their respective health on 22 January 2015 (大家交換身體健康).[27]

(6)  The Plaintiff’s criticism that Mr Mak did not take instructions on the size of his estate and potential beneficiaries[28] would not cast doubt on the credibility when it was the Deceased’s instructions that the 3^rd Defendant should be given the residuary estate.

44.  Fifthly, it is difficult to understand the Plaintiff’s complaint at the Plaintiff’s Closing Submissions at §§60 to 65 that the evidence concerning the execution of the Will was irrational, absurd and inherently implausible:

(1)  The Deceased had been feeling very bad due to constant constipation at the material time.  It was likely that the Deceased must have some misgivings about his own health.  The time when he gave instructions and requested for execution tallied with the time when his health condition was worsening.

(2)  Whether Mr Mak would outlive the Deceased was totally beside the point.  In any event, the submission at §64(2)  of the Plaintiff’s Closing Submissions that the Deceased would outlive Mr Mak makes no sense.

(3)  The matters raised in §64(3)  of the Plaintiff’s Closing Submissions are largely irrelevant, unreal or were known to Mr Mak already.  Further, the alleged issues concerning how Mr Mak would come to know of the death of the Deceased and whom he should contact thereafter are proven to be non-issues to Mr Mak.  Further, there is nothing to show that to accept the task of keeping the Will was in any way uncharacteristic of Mr Mak.

(4)  There is no logic in the suggestion that because the Will was not prepared by solicitors, it was counter-intuitive for the Deceased to make specific request of the pronouncement of the Will at a solicitor’s firms.  There could be many reasons for one to prefer that option.

(5)  It is difficult to follow the logic of the submissions that if Mr Mak was not entrusted to keep the actual copies of the other documents, he would not have been entrusted by the Deceased to keep the original of the Will.  In fact, one cannot see any reason for the Deceased to require Mr Mak to keep the other documents.

(6)  Lastly, neither Mr Mak nor the Deceased would have foreseen this litigation at the time when the Will was executed.  There is nothing wrong for Mr Mak not to see any need to keep any written record at that time.

45.  Sixthly, there is no merit in the Plaintiff’s criticisms at §§66 to 68 of the Plaintiff’s Closing Submissions on Mr Mak’s account after the execution of the Will:

(1)  As submitted in the Defendants’ Closing Submissions, matters after the execution of the Will are of peripheral importance to the issues.

(2)  The Plaintiff seems to imply that the 1^st Defendant must have told Mr Mak about the Deceased’s demise.  This is not borne out by the evidence.  In fact, it was P’s Sister’s evidence that the 1^st Defendant told her at the funeral that she did not know Mr Mak either.

(3)  It is difficult to see how the lack of evidence of Mr Mak enquiring upon the health of the Deceased or visiting him affects the credibility of his account.

46.  Lastly, the Plaintiff has again ignored the effect of Mr Mak’s evidence when complaining that his evidence on the pronouncement of the Will was inconsistent:[29]

(1)  Mr Mak already clarified that he was under a mistaken belief that he still had the copy of the will of the Deceased’s Mother at the time when he pronounced the Will.[30]  The fact that the 1^st Defendant managed to produce the will of the Deceased’s Mother from the items left by the Deceased corroborates Mr Mak’s evidence that the will of the Deceased’s Mother was returned to the Deceased.

(2)  As to Mr Mak’s failure to mention about seeing the documents relating to P’s Sister’s Property earlier, the audio-recording speaks for itself and Mr Mak must have been informed by the Deceased as to the status of P’s Sister’s Property.

47.  Thus, the Plaintiff’s suggestion that Mr Mak made up a story is devoid of any merit and premised upon a misunderstanding and a selective disregard of Mr Mak’s evidence.  That is not to mention that Mr Mak’s evidence is supported by the existence of the documents he referred to and the use of “潘玉財” on the Will which he was not supposed to know unless he was so told by the Deceased.

Mr Lee’s evidence

48.  The Plaintiff’s criticisms of Mr Lee’s evidence at §§75 to 80 of the Plaintiff’s Closing Submissions can be disposed of shortly as they have no substance whatsoever.  The Plaintiff was at pains to nit-pick the discrepancies between Mr Mak’s testimony and Mr Lee’s testimony, all of which are just minor details having no impact on their credibility.

49.  It is accepted at §77(3)  of the Plaintiff’s Closing Submissions that the Deceased did meet Mr Lee for a few times.  In the premises, it is not surprising at all for the Deceased to ask Mr Lee to be the other witness when he decided to ask Mr Mak to be a witness to his will.

50.  It is even more improbable for Mr Lee to be involved as a witness of a fabricated will.  The Plaintiff has not explained (1) why the 1^st Defendant would wish to find a taxi driver whom she did not know to fabricate a will jointly, (2) why Mr Lee would wish to incur criminal liability for doing so.

The 1^st Defendant’s evidence

51.  The Plaintiff’s contention that the 1^st Defendant was making up evidence to corroborate Mr Mak and Mr Lee is equally misconceived.

52.  First, the Plaintiff’s point that the 1^st Defendant did not but could have obtained travel record or record from bonesetter is totally irrelevant.  It was not even put to the 1^st Defendant that the Deceased did not return from Shenzhen to Hong Kong in the afternoon, or that he did not go to the bonesetter on the evening of 5 February 2015. The Plaintiff also did not but could have obtained the evidence from the bonesetter.

53.  Secondly, the Plaintiff’s suggestion at §84(5)(a)  of the Plaintiff’s Closing Submissions that the Deceased “was never willing to marry the 1^st Defendant” was not borne out by the evidence.  As submitted in the Defendants’ Closing Submissions at §45, the most likely inference from the alleged sham marriage was that it was arranged by the Deceased.  The fact that the Deceased had been living with the 1^st Defendant as if they were husband and wife for so many years up to his death speaks volumes for their relationship.

54.  Thirdly, the Plaintiff’s criticism at §84(5)(b)  of the Plaintiff’s Closing Submissions that the 1^st Defendant gave inconsistent account on whether she handled the accounting of the Deceased’s business is nothing more than a matter of imprecise description of what she did and goes nowhere to dent her credibility.

55.  Fourthly, the Plaintiff’s contention at §84(5)(c)  of the Plaintiff’s Closing Submissions is misleading.  The Plaintiff referred to two answers which concern two different points in time.  The first answer in footnote 95 of the Plaintiff’s Closing Submissions concerns the New Year visit on 26 February 2015.  The second answer in footnote 96 is likely to concern sometime soon after 18 March 2015 when the Deceased was already in WGZ while he was conscious.[31]  It is understandable for the 1^st Defendant to have thought differently as the Deceased’s condition continued to deteriorate and she must have been distressed.

56.  Fifthly, the Plaintiff’s criticism of the 1^st Defendant’s recollection as to what precisely happened on 5 February 2015 at the Shenzhen Second People’s Hospital (“SSPH”)  was most unfair.  The 1^st Defendant was able to produce proof to support her account by contemporaneous record (ie the Original Report).  It cannot be seriously suggested that the 1^st Defendant’s testimony regarding the post-colonoscopy exchanges with the medical staff of SSPH on 5 February 2015 was made up.

57.  Sixthly, the Plaintiff is misconceived when he has sought to discredit the 1^st Defendant for “blaming her previous solicitors for not disclosing these documents earlier”.[32]  When all the documents were produced to rebut the Plaintiff’s suggestion, it only bolsters but not destroys the 1^st Defendant’s credibility.

58.  The 1^st Defendant has no direct interest in the outcome of this action in that she would receive no testamentary gift under the Will and is merely an executrix of the Will.

The 2^nd and 3^rd Defendants’ evidence

59.  Although the 2^nd and 3^rd Defendants have an interest in the outcome of this action, they gave straightforward and credible evidence during their cross-examination.  Importantly, their evidence was very fair and they had not exaggerated their relationship with the Deceased or deliberately downplayed the Deceased’s relationship with the Plaintiff or P’s Sister.[33]  It was not put by the Plaintiff to them during their cross-examination that their evidence was untruthful.

C.   THE FACTS

60.  In the instant case, it appears that there are four relevant factual issues: (1) the Deceased’s relationship with the parties; (2) the Deceased’s intention in relation to his properties during his lifetime; (3) how the Will was prepared; and (4) how the Will was executed: see Cheung Ki Wing v Cheung Lai Yee [2019] HKCFI 2086 at §31, per B Chu J.

C1.   The Deceased’s relationship with the parties

C1.1  The Deceased’s relationship with the Plaintiff and P’s Sister

61.  The Deceased’s relationship with the Plaintiff and P’s Sister was not close at all.

62.  The Plaintiff and P’s Sister were separated from the Deceased since they were very little.  P’s Mother brought the Plaintiff and P’s Sister back to Fujian in 1994, when the Plaintiff was only 1 year old and P’s Sister was about 4 years old.  According to the Deceased’s Sister, even though the Deceased frequently went to the Mainland to conduct his business during that time, he only visited them about 3 times a year.

63.  By Order dated 14 June 2000, the Deceased agreed by consent to give the care, custody and control of the Plaintiff and P’s Sister to P’s Mother with reasonable access to the Deceased.  This does not sit comfortably with P’s WS at §§11-12 and P’s Sister’s WS at §5 that the Deceased wanted to fight for their custody and control but failed.

64.  The Deceased had rarely contacted them for a number of years.  Their recent invention during cross-examination that the Deceased had seen them regularly once or twice a month during that period is contradictory and should be rejected.[34]

65.  Between 2001 and 2005, the limited extent to which the Deceased exercised his right of access to the Plaintiff and P’s Sister also reflected how little he cared about them.  There was also no sound reason for the Deceased to only meet his children through the Deceased’s Sister.  The more likely reason must be that the Deceased primarily wanted to visit his mother and incidentally met the Plaintiff and P’s Sister.

66.  The Deceased had always kept himself aloof from the Plaintiff and P’s Sisters thereafter:

(1)  The Deceased had told the 1^st Defendant that he rarely saw the Plaintiff and P’s Sister, throughout the time when the Deceased was living with the 1^st Defendant. The 2^nd Defendant was also told by the Deceased that he felt that the Plaintiff and P’s Sister only came back to see him because he was financially well-off.

(2)  The Deceased had never attended any school events of the Plaintiff or P’s Sister, nor brought them to Fujian to worship the ancestors.  The Plaintiff and P’s Sister were unable to produce any family photos showing a close relationship between the Deceased and the Plaintiff or P’s Sister.

(3)  It was the Plaintiff’s own evidence that he was unable to integrate into the Deceased’s family with the Defendants when he resided with them in 2012.  In such a case, it is difficult to see how the Plaintiff could have always maintained a close relationship with the Deceased.

(4)  The unhappy birthday dinner in 2014 also gives us a glimpse of the cold and distant relationship between the Deceased and the Plaintiff and P’s Sister.  If the Deceased had a good relationship with the Plaintiff and his sister, he would not have been so mad at the Plaintiff and P’s Sister for their being late for work reason.

(5)  The Deceased had not informed the Plaintiff and P’s Sister of many important matters.  For examples, the Deceased did not ask the Plaintiff or P’s Sister to visit him when he was in jail in September 2013 nor register their names for prison visit purpose.  He did not even tell them that he was diagnosed to have a tumour during the visit at the New Year.

67.  It is also very telling that the Deceased valued his work and business more than the Plaintiff and P’s Sister.  In 2005, he did not go to the airport to say farewell to P’s Sister when she departed to study abroad in the United States for the first time.[35]  Moreover, while the Plaintiff injured his head and was bleeding badly when collecting goods with the Deceased and the 3^rd Defendant at Aberdeen in 2012, the Deceased simply ignored that and asked the 3^rd Defendant to collect the goods first; the Deceased even left the hospital immediately when P’s Mother and Sister arrived.

C1.2  The Deceased’s relationship with the Defendants

68.  On the other hand, it can hardly be disputed that the Deceased had a very close relationship with the Defendants.

69.  First, the undeniable fact is that the Deceased had been living with the 1^st Defendant as if they were husband and wife since 1996 until his death, and the 1^st Defendant was recognised as his second-wife (繼妻), or wife (陳太).  Even for the sake of argument that the Plaintiff were correct in suggesting that the 1^st Defendant had contracted a sham marriage with Mr Chan Ka Lok in 2005 (which is not admitted by the 1^st Defendant), in light of the fact that the certificate was stored in the Deceased and the 1^st Defendant’s bedroom, and the Deceased had full knowledge from the beginning,[36] the most likely inference is that it must have been arranged by the Deceased.

70.  Secondly, the Deceased had a close bonding with the 1^st, 2^nd, and 3^rd Defendants.  For example, the Deceased would pick up the 3^rd Defendant from school and drive him to tutorial school every day.  The Deceased was responsible for going to the 2^nd and 3^rd Defendants’ school’s parents days.  After 2006, the Deceased planned for the family’s weekend activities basically every week and they had been to many places around Shenzhen and all the theme parks in Hong Kong.  Their close bonding was also reflected in the family photos taken throughout the years.  This is in stark contrast to the Plaintiff or P’s Sister’s evidence.

71.  Thirdly, it is also fair to say that the Deceased was particularly fond of the 3^rd Defendant in that the 3^rd Defendant received his attention which no other children had.  The Deceased would drive him to school and pick him up after school between Shenzhen and Hong Kong every day.  The Deceased would attend the 3^rd Defendant’s school to meet his teachers if required.  The Deceased even promised to give a brand-new Land Rover (路虎)  to the 3^rd Defendant when he reached 18 years old and obtained a driving licence.  As will be elaborated further below, the Deceased also hoped the 3^rd Defendant to take over his business in the future.

C2.   The Deceased’s intention in respect of his properties

72.  In respect of the Deceased’s intention in respect of his properties during his lifetime, there is not much evidence.  The main contentions of the Plaintiff rest on two matters: (1) the recycling business of the Deceased, and (2) P’s Sister’s Property mentioned in §5 of the Will.

C2.1  The Deceased’s business

73.  In respect of the recycling business of the Deceased, suffice it to say that it is unclear what is the Deceased’s recycling business which the Plaintiff expected to inherit from the Deceased.  At trial, the Plaintiff merely referred it to be the Deceased’s company (公司)  without any particulars.[37]

74.  From the evidence, there were two known businesses of the Deceased.  The first one was called 深沙收購站 in Sha Tau Kok, Shenzhen, which is now being run by the 3^rd Defendant.  The Deceased also had another sole proprietorship trading in the name of Lung Chuen Plastic & Metal Co (龍泉廢膠五金貿易所)  (“Lung Chuen”).

75.  However, it is unclear whether this was the company which the Plaintiff was referring to.  It is also unclear as to what was its precise scope of business, what were the assets owned and liabilities owed by it, and the financial worth.  The only information regarding Lung Chuen was that it had already ceased business and operation since the Deceased passed away in 2015.

76.  Even assuming that Lung Chuen was the subject matter, it is very unlikely that the Deceased intended the Plaintiff, but not the 3^rd Defendant, to inherit the same.  There should be no dispute that the Plaintiff did not perform well when working under the Deceased in 2012.  The Plaintiff only worked under the Deceased briefly before leaving the industry and working in a hotel.[38]  Against this background, it is difficult to imagine the Deceased would have been minded to leave his business to the Plaintiff.  This is reinforced by the fact that even the Plaintiff’s aunt did not leave her recycling business, Hop Lee Lung Electronics Metal Plastics Recycle Company (合俐隆電子五金廢膠回收公司), to the Plaintiff.

77.  On the other hand, it was the 3^rd Defendant’s unchallenged evidence that the Deceased considered him to be interested in the recycling business, and the 3^rd Defendant would always help the Deceased out in his work during holidays.  The fact that the 3^rd Defendant is carrying on recycling business now speaks volumes for the 3^rd Defendant’s case.  In the circumstances of the case, the 1^st and 3^rd Defendants’ evidence that the Deceased had expressed an intention to leave the recycling business to the 3^rd Defendant makes perfect sense.

C2.2  P’s Sister’s Property

78.  The contention at P’s Sister’s WS, §37 that the P’s Sister’s Property mentioned in §5 of the Will was gifted to her in 2013 is wholly unreal.

79.  As shown in P’s Sister’s evidence during cross-examination, (1) there was no particular reason for the Deceased to gift the P’s Sister’s Property to her, (2) the purchase price was paid by the Deceased, (3) it was rented out by the Deceased, (4) the rental income was received by the 1^st Defendant, (5) P’s Sister did not have possession of the keys to or the title deeds of P’s Sister’s Property, and (6) P’s Sister’s explanation that she had no intention to receive the rents derived is hardly believable.  In the premises, it is incredible for P’s Sister to claim that she was the beneficial owner of the property.  She had no control whatsoever over the property.  Rather, the only reasonable conclusion must be that P’s Sister was merely holding the property for the Deceased.

C3.   How the Will was prepared

80.  The only factual witness on how the Will was prepared is Mr Mak.  Notwithstanding he was cross-examined on all the minute details, his evidence remains unshaken at all. There is no reason not to accept his evidence.

81.  Mr Mak had around 21 years’ experience working as a clerk in solicitors’ firms, which was thoroughly explored during his cross-examination.  What is relevant is that Mr Mak had some experience in handling the making of a will by clients, had assisted in the execution of wills (平時同律師見證), and had kept some precedents of wills.  Mr Mak knew the Deceased for over 10 years and helped him with his legal matters.

82.  Both the Plaintiff’s and the Defendant’s Experts agreed that the Deceased “should have been of sound mind and understanding” from late January 2015 to 5 February 2015 before the colonoscopy: Joint Experts Instructions Letter at §13.

83.  On 20 January 2015, the Deceased inquired with Mr Mak what information was required for making a will: Mak’s WS at §3.

84.  On 22 January 2015 at around noon, the Deceased met with Mr Mak at a Chinese restaurant in Fanling.  The Deceased asked Mr Mak to draft a will for him.  Mr Mak suggested to the Deceased to find a solicitor to handle it, but the Deceased begged him and insisted that he could draft it for him.  Mr Mak therefore agreed to do so in view of his friend’s request (盛情難卻).  Since Mr Mak had some experience in handling the making of a will, it is not surprising that he would, albeit with reluctance, agree to do for the Deceased.

85.  The Deceased then provided Mr Mak with his instructions which was hand-written on a sheet of A4 paper, including the addresses of the properties, the name and identity card numbers of the Plaintiff, P’s Sister, the 2^nd and 3^rd Defendants, the name and identity card number of the executrix, and how the remaining estate was to be distributed.  The Deceased also provided a hand-written declaration of trust (信托紙)  that the Deceased’s Sister was holding a property for him and a will of the Deceased’s Mother made in 2008: Mak’s WS at §5.  Mr Mak’s account is supported by the fact that those documents are in existence (ie Exhibits D7A & D8A).  Importantly, Mr Mak could not have known about the existence of these documents unless the Deceased had in fact provided him with them.

86.  Similarly, Mr Mak could not have known about the other name of the Deceased’s Mother “潘玉財”, which appeared in the genealogy book (Exhibit D1)  or the tombstones,unless the Deceased had provided him with the information.  Further, there must have been a specific reference to “潘玉財” in the Deceased’s hand-written instruction to Mr Mak,[39] otherwise it is inconceivable why Mr Mak would not have followed the name “潘玉才” used on the Deceased’s Mother’s will (Exhibit 8A), which was provided to him.

87.  Mr Mak then said he would need a few days, and the Deceased told him to prepare a draft for him first.  They agreed to meet again on 28 January 2015.  Afterwards, Mr Mak prepared a draft will by using some precedents of will in his possession for reference, and he first prepared some handwritten rough drafts first.  It is clear that Mr Mak must be the person who drafted the Will, as he was able to explain during cross-examination which part of the Will was copied from his precedents.

88.  On 28 January 2015, Mr Mak provided a draft of the Will for the Deceased to confirm.  Having checked the draft, the Deceased said that he had no problem (我冇問題).  Before leaving, the Deceased told Mr Mak to stand by and he would give him a call.  However, he did not mention when he wished to execute the Will, nor the identities of the witnesses.  At that time, Mr Mak was still keeping the information provided to him by the Deceased as he still needed to prepare the final version.  Mr Mak did not receive any remuneration for drafting the Will.

C4.   The execution of the Will

89.  In respect of the circumstances leading to the execution of the Will on 4-5 February 2015, the factual evidence came from the 1^st Defendant, Mr Mak and Mr Lee.

C4.1  4 February 2015

90.  In the morning of 4 February 2015, the Deceased attended the SSPH to register his medical appointment for colonoscopy.

91.  On the afternoon of 4 February 2015, Mr Mak received a call from the Deceased, asking if the Will had been prepared, to which Mr Mak answered in the affirmative.  The Deceased then said to Mr Mak that he wished to execute the Will on 5 February 2015 and asked him to find one more witness.  The Deceased suggested to find Mr Lee as witness.  Mr Lee was a taxi driver who had driven Mr Mak to find the Deceased, and the Deceased and Mr Mak had had dinner with him for 2 or 3 times.

92.  Mr Mak therefore called Mr Lee to see if he wished to be the witness as well.  Mr Lee agreed and asked Mr Mak when to do so.

93.  Mr Mak then called the Deceased and asked him when he would wish to execute the Will.  The Deceased replied that it would have to be the evening on 5 February 2015, as he would need to visit 黃志遠跌打館 in Luen Wo Market, Fanling at around 6 pm.  The Deceased asked Mr Mak to pick him up there and they would go to his office in Loi Tung Tsuen, Sha Tau Kok for the execution.  Mr Mak then asked Mr Lee to wait for him at his residence in Yau Ma Tei at 6 pm and confirmed with the Deceased that he would meet him at 黃志遠跌打館 at around 7 pm.

94.  Understandably, there was no discussion about any remuneration to Mr Lee, as he was merely doing a favour for Mr Mak, his frequent customer and friend.

C4.2  5 February 2015

95.  At around 1:50 pm on 5 February 2015, the Deceased and the 1^st Defendant left their residence in Kong Ha Village to SSPH for colonoscopy.  As the Deceased had injured his feet in January, it was the 1^st Defendant who drove the Deceased to SSPH.  They arrived at the SSPH at around 2:30 pm.

96.  At around 3 pm, the Deceased was arranged to undergo colonoscopy.  The Defendants’ Expert opined that the procedure was incomplete due to luminal obstruction by a tumour at only 10-18cm from anus.  He doubted not all 400mg of Propofol which they paid for were used during the process and estimated that only around 250mg was used, meaning that the effect would wean off earlier.[40]  This is supported by the evidence of the 1^st Defendant to the effect that the process lasted for about 10 minutes when she was informed by a nurse that it could not proceed further because of the obstruction by the tumour.

97.  At around 3:10 pm, the colonoscopy was finished.  A nurse came to the 1^st Defendant and informed her that there was a tumour and biopsies were taken.  In the resting room, a pathology report was given to the Deceased and the 1^st Defendant (Exhibit D5)  (the “Original Report”), on which it was stated that the nature of the tumour was to be determined (結腸新生物性質待定).  The doctor informed them that it might be cancer.[41]

98.  In the trial bundle, there is another pathology report dated 5 February 2015 following the colonoscopy (the “Updated Report”).  While the Updated Report contains a description of a malignant tumour under the section of “病理诊断”, it should be noted that the description was not there on 5 February 2015 (see: the Original Report).  As can be seen from the certificate, the description under the section of “病理诊断” was only subsequently added to and combined with the Original Report[42] when the family of the Deceased visited SSPH to obtain a printout of the medical records.  At around 3:25 pm, the 1^st Defendant paid for the medical expenses for the check-up.  At around 4 pm, the Deceased and the 1^st Defendant left after the nurse permitted them to leave.

99.  When they left, they did not go back to Hong Kong straightaway, but instead the Deceased wished to go to their home in Shenzhen to burn incense for his grandparents.  The 1^st Defendant therefore drove him there.  During the journey, the Deceased held the medical report and told his friend the result on the phone, but the 1^st Defendant could not now recall exactly what was said.  At home, the Deceased burnt the incense and prayed for a blessing in Hokkien.

100.  They left at around 4:30 pm for Hong Kong.  When crossing the border at Sha Tau Kok, the Deceased took out his identity document from his wallet and passed it to the immigration officer through the 1^st Defendant. When the officer called his name, the Deceased also raised his hand in response.  Understandably, the Deceased and the 1^st Defendant did not talk about the result of the colonoscopy as both of them were worried about it.[43]

101.  The 1^st Defendant then drove the Deceased to 黃志遠跌打館 at his request.  When they arrived at around 5:30 pm, the Deceased told her that he had something to do and would meet his friends, and thus the 1^st Defendant dropped him off and went home.  During the aforesaid rides, the Deceased had talked with the 1^st Defendant. There was nothing which indicated to the 1^st Defendant that the Deceased was not of sound mind (神志不清), and the 1^st Defendant felt that he acted as usual.

C4.3  The execution of the Will

102.  At around 6 pm, Mr Lee drove his taxi and picked up Mr Mak in Yau Ma Tei.  They arrived at 黃志遠跌打館 at around 7 pm.

103.  The Deceased then got on Mr Lee’s taxi.  At that time, the Deceased was slightly crippled as his right foot was bandaged.  Both the Deceased and Mr Mak sat at the backseats, and they chatted about the Deceased’s foot condition.  The journey from 黃志遠跌打館 to Loi Tung Tsuen took around 10-odd minutes.

104.  At around 7:30 pm, Mr Lee dropped off the Deceased and Mr Mak first, and he then parked his taxi nearby, around 20 private cars away from the office.  The Deceased and Mr Mak went into the Deceased’s office first.  Mr Mak gave the information and the Will to the Deceased, who then checked them himself for around 10 to 20 minutes.  No question was asked by the Deceased.  After checking, he said “okay” and asked Mr Mak to show Mr Lee into the office.

105.  After Mr Lee came in, the Deceased thanked him for helping him witness the execution of the Will, and Mr Lee replied it was not a problem at all.  Afterwards, the Deceased signed his name on the Will in the presence of Mr Mak and Mr Lee.  Then Mr Mak and Mr Lee signed on it as witnesses in the presence of the Deceased as well.  Both Mr Mak and Mr Lee confirmed their signatures in court.

106.  Thereafter, the Deceased invited Mr Lee to wait for them in the taxi.  The Deceased then entrusted Mr Mak to keep the Will for him.  The Deceased asked Mr Mak that he should inform his family members after his funeral and the Will must be pronounced at a solicitors’ firm.

107.  The Deceased then took back all the information/documents given to Mr Mak before.  In this regard, questions were put to Mr Mak as to whether he indeed returned all the papers to the Deceased, as the transcript of the audio-recording on 2 June 2015 seems to indicate that he has kept the will of the Deceased’s Mother.  Mr Mak explained that he remembered it wrongly at the time as after he went home to check, he found that he only had the Will.  In any event, the fact that the 1^st Defendant was able to produce the declaration of trust (Exhibit D7A)  and the Deceased’s Mother’s Will (Exhibit D8A)  during the trial strongly supports Mr Mak’s evidence that he had returned all the information/documents to the Deceased.

108.  After around 10 minutes, Mr Mak also left the office.  He then got on the taxi of Mr Lee and left.

109.  Both Mr Mak and Mr Lee considered that the Deceased was normal, conscious, and could conduct normal conversation.  During cross-examination, issue was taken as to why the same descriptions were used in Mak and Lee’s WS.  Mr Lee frankly accepted that the phrases used in his witness statement were not exactly his words, but he agreed that the wordings in §7 of Lee’s WS reflected what he meant.[44]

110.  At around 9 pm, the Deceased returned to his home in Sha Tau Kok.

C5.   Subsequent events

111.  As submitted by the Defendants, insofar as the validity of the Will is concerned, the subsequent events are only of peripheral relevance, if at all.  Insofar as this court is required to make factual findings in those regard, I accept that the 1^st to 3^rd Defendants and Mr Mak’s evidence should be preferred, given that the Plaintiff’s factual witnesses are unreliable as held above.

D.  THE LEGAL ISSUES

112.  It is trite that the proponents of the Will (ie the Defendants)  have the persuasive burden of proving on a balance of probabilities that (1) there was due execution of the will; (b) the testator was of testamentary capacity; and (3) the testator knew and approved of the contents of the will.  On the other hand, the person who wishes to dispute the validity of the Will (ie the Plaintiff)  bears the evidential burden of putting the relevant ground of challenge in issue by adducing evidence of sufficient cogency: Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387 at §§171-173, 176, per Ribeiro PJ.

D1.   Due execution of the Will

113.  Proof of due execution requires proof that the Will was signed by the Deceased and that the formality requirement of a valid will set out in section 5(1)  of the Wills Ordinance, Cap 30 are complied with: Nina Kung (ibid)at §175, per Ribeiro PJ.

114.  The Will is on the face regular.  It is in writing and signed by the Deceased in the presence of 2 witnesses (“本人於2015年2月5日在下列兩位見證人面前簽署”).  The two attesting witnesses have signed against an attestation clause reflecting the statutory requirement (“於簽署名字作見證人時，本立遺囑人陳茂足 (CHAN MAU CHUK)  與我們均同時在場”).  In the premises, a strong presumption of regularity arises: Nina Kung (ibid)  at §199, per Ribeiro PJ.

115.  Based on the matters set out at Section C4.3 above, the Will was duly executed.  Although the Plaintiff put a case to Mr Lee that the execution on 5 February 2015 did not happen, that is without any evidential foundation.  The court has no hesitation in finding that the Will was duly executed.

D2.   Testamentary capacity

116.  The Defendants submit that the Deceased had testamentary capacity when executing the Will.  The Plaintiff adduced no sufficiently cogent evidence to raise the issue of incapacity.  The Plaintiff’s pleaded challenges are dealt with in turn.

D2.1  General principles

117.  The relevant principles on testamentary capacity are well-settled.  The testator must be able: (1) to understand the nature of his act, ie, making a will, and its effects; (2) to understand the extent of the property of which he is disposing; (3) to comprehend and appreciate the claims to which he ought to give effect.  The testator must not be subject to any disorder of mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”: Key v Key [2010] 1 WLR 2020 at §93, per Briggs J (as he then was); Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at §45, per Kwan JA (as she then was).

118.  It is important that understanding or comprehension of the testator is not a reference to what they actually remember but rather than a requirement that they have the capacity to understand and comprehend such matters.  Capacity depends on the potential to understand, and is not equated with a test of memory.  A testator does not need to have all the facts with which to make a correct or justifiable decision: Simon v Byford (2014)  17 ITELR 536 at §§39-40, per Lewison LJ; Goss-Custard v Templeman [2020] EWHC 632 (Ch)  at §13 and §133, per Fancourt J.

119.  If a will is rational upon its face and duly executed, there is a presumption of testamentary capacity: Key (supra)  at §97; Templeman (supra)  at §16.  A will is irrational if it is couched in strange terms, written in strange manner and/or sounding to folly: Arbery v Ashe (1828)  162 ER 562 at 563.

D2.2  Rationality of the Will

120.  In the present case, the court should presume that the Deceased had testamentary capacity.  The Will is completely intelligible and contains no strange terms.  There is nothing unusual, let alone irrational, for the Deceased to leave substantial testamentary gifts to the 3^rd Defendant, his only son with the 1^st Defendant and on the evidence, a child he was particularly fond of and shared a close relationship.

121.  But even assuming that no presumption should be applied in this case, I agree that none of the Plaintiff’s contentions (alone or taken together)  shows that the Will is irrational.

122.  First, the Plaintiff contends that the Will is irrational because the Deceased had manifested that the recycling business was to be taken up by the Plaintiff.  This is a non-starter:

(1)  As set out in Section C2.1 above, it is unclear what is the recycling business the Plaintiff is alluding to.  There is also dearth of evidence on the nature, substance and money worth of the business.  The evidential burden is not discharged as no meaningful inference can be drawn.  Further, on the evidence, it is more likely than not that the Deceased intended the 3^rd Defendant to take over his recycling businesses.

(2)  In any event, the fact that the Deceased did not specifically mention a particular property does not mean that he was incapable of understanding the extent of his estate: Simon v Byford (supra)  at §42.

123.  Secondly, the Plaintiff’s contention that there is unequal distribution is neither here nor there.  It is the fundamental principle of English (and Hong Kong)  law that people should in general be free to leave their property as they choose: Gill v Woodall [2011] Ch 380 at §16, per Lord Neuberger MR (as he then was).  In any event, the contention is not borne out by the evidence because:

(1)  As summarised in Section C1 above, the Deceased had a very close relationship with the 1^st to 3^rd Defendants, but kept himself aloof from the Plaintiff and P’s Sister.  On the evidence, the Deceased was particularly fond of the 3^rd Defendant.  In the circumstances, there is nothing unusual, inexplicable or irrational to leave the residuary estate to the 3^rd Defendant.

(2)  In fact, the Deceased adopted an even-handed approach by devising each of his children real properties, and did not leave any particular children unprovided for.

(3)  In any event, unequal distribution does not follow that the Deceased had no capacity to weigh rival claims of his children.  It is equally consistent with a deliberate decision after weighing.

124.  Thirdly, the Plaintiff’s reliance on the absence of the Alleged Son or Ms Liao in the Will is equally misplaced.  It may be that the Alleged Son was a son of the Deceased.  However, this is no proof of the key issue of how good their personal or familial relationship was.  Nor is there any evidence how they were treated or maintained by the Deceased, if at all, by the Deceased before he passed away.  The Plaintiff is a prime example that blood relation does not mean good relationship.  The Plaintiff again fails to discharge his evidential burden to raise the bearing of their absence from the Will.

125.  In any event, it is quite obvious that the Deceased wanted to keep the relationship secret, as neither the Plaintiff nor the Defendants knew of Ms Liao or the Alleged Son’s existence until the funeral of the Deceased.  It is totally unsurprising that the Deceased made no mention of them in the Will.

126.  Fourthly, the Plaintiff contends that the Deceased could not have mis-written the Deceased’s mother’s name as “潘玉財”.  As illustrated in Section B4 above, this is totally misconceived and shows the lack of merits of the Plaintiff’s challenges.  “潘玉財” must be the real name, or to say the least, a name used by the Deceased (and other relatives)  for his mother in the home county.  It reinforces the Defendants’ case that the instructions for the preparation of the Will must have come from the Deceased, who was of sound mind and remembered specifically his mother’s real name.  In any event, mis-writing a name is not a good ground for finding that the testator lacked testamentary capacity: cf Templeman(supra)  at §58.[45]

127.  Fifthly, given that the residual estate is bequeathed to the 3^rd Defendant, it is not easy to see the utility of naming all the properties held by or on trust for the Deceased in the Will.  There is nothing irrational when there is a catch-all bequest to the 3^rd Defendant.  Further, not naming all the properties is neither here nor there, as this is not a test of memory and the Deceased needed not have all the facts with him: Templeman (supra)  at §§13 and 133.

128.  Sixthly, the suggestion that the Deceased’s responded to Mr Cheng Yip that he did not make a will on 16 April 2015 is plainly wrong.  The audio shows that the Deceased was already very unresponsive.  It is doubtful whether the “嗯” was even a response.  Further, P’s WS at §49 must be a concoction as those responses are not corroborated by the audio he purposively recorded at all.

129.  Lastly, in P’s Sister WS, it is said that P’s Sister’s Property bequeathed to her in the Will was already transferred to her inter vivos in 2013.  As explained in Section C2.2 above, P’s Sister in fact was only holding the property for the Deceased and had no control or possession of the property.  In the circumstances, the inference must be that the Deceased clearly remembered that the P’s Sister Property was held in her name already, and it was the moment for him to leave her the beneficial interest of it.  This precisely reinforces the Deceased’s capacity to appreciate the claim he ought to have given effect.

D2.3  The effect of anaesthesia on 5 February 2015

130.  The Plaintiff’s main contention on testamentary capacity rests on the effect of anaesthesia caused by Propofol administered to the Deceased during colonoscopy in the afternoon in SSPH on 5 February 2015. I agree that this ground is not borne out by both the factual and expert evidence.

131.  First, this argument must be approached in the proper context that the instructions on the content of the Will was prepared well in advance when the Deceased clearly had full testamentary capacity.[46]  In such circumstances, what is required is that the testator knew that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms: Burns v Burns (2016)  18 ITELR 706 at §32, per McCombe LJ.

132.  As summarised in Section C3 above, the instructions for the Will was given on 22 January 2015, and the Deceased had checked and approved the content of the draft Will once on 28 January 2015.  The circumstances of execution set out in Sections C4.1 and 4.3 above clearly show that the Deceased must have known that what he was executing on 5 February 2015 was the Will prepared by Mr Mak in accordance with his instructions.

133.  Secondly, for a will which had been prepared and discussed in advance, clear evidence of lack of mental capacity is required to set it aside: see Templeman (supra)  at §§17-18.  Evidence of this quality, however, is completely lacking:

(1)  During the cross-examination, P’s Expert was unable to comment on most of the matters, including (a) the mental state of the Deceased during execution, (b) the particular effect of Propofol on the Deceased, (c) whether there was any difference between signing a will and a document which he had previously given instructions for and confirmed, and (d) whether the Deceased was conscious or alert before or when executing the Will.  What he insisted was that one should follow the guideline of not signing legal documents within 24 hours.

(2)  However, this was forcefully rebutted by D’s Expert.  He explained that the 24 hours rule was a “one knife cut” or catch-all rule and a grandfather rule which was set at a time when benzodiazepine, a drug which caused much deeper and longer (generally around 4-6 hours)  sedation, was widely used.  The rule was thus not set for Propofol, which had an “ultra-short sedation”, and is too strict.

(3)  Further, as noted in paragraph 96 above, as the colonoscopy was incomplete, it was likely that only around 250mg of Propofol was used, meaning that the effect would wean off even earlier.  D’s Expert further opined that the depth of anaesthesia would thus be very light, and the effect of Propofol had already weaned off when the Deceased arrived at the bone setter.  He also opined that by being able to meet up with friends at appointed time at a particular place, the Deceased was not disoriented and was awake and fully conscious.  In any case, the Deceased must be mentally alert at around 7 pm.

(4)  There is also nothing which contradicted the 1^st Defendant, Mr Mak and Mr Lee’s assessment that the Deceased was normal and conscious at the material time.  Further, the fact that the Deceased did not seek to revoke or amend the Will afterwards speaks for itself.

D2.4  The Golden Rule

134.  The golden rule is relied upon by the Plaintiff. I agree that this is misconceived as it is only a “prudent guide for solicitors”: Burns v Burns (supra)at §47; Re Estate of Au Kong Tim (supra)  at §§2.7 and §76.  It is also not a touchstone of validity of a will, nor does non-compliance demonstrate its invalidity: Key (supra)  at §8.  It is difficult to see how it is relevant or assists the Plaintiff’s case, when the Deceased refused to instruct a solicitor and when Mr Mak was not a qualified person.

D3.   Knowledge and Approval

135.  On the third requirement of validity, namely that the Deceased knew and approved the content of the Will, it is important to note that it requires no more than an ability to understand and approve choices that have already been made: Simon v Byford (supra)  at §47.

136.  This should be presumed in the present case because the Will was duly executed and the Deceased was of testamentary capacity: Nina Kung (supra)  at §§206-207.  The Deceased was also of sound mind and the Will was not particularly difficult for him to understand or had no extraordinary features: Johnson v Johnson [2006] EWHC 2256 (Ch)  at §64.

137.  There is nothing in the present case which rebuts the presumption: cf Johnson(ibid)  at §64.  Nor is there anything which excites suspicion: cf Burns (supra)  at §§52-54, per McCombe LJ.  Specifically, the second rule in Barry v Butlin also does not apply because Mr Mak, the person who prepared the Will, does not take any benefits and he is not closely related to or associated with any devisee or legatee: Nina Kung (supra)  at §218.

138.  The discussions in Section D2 above are repeated mutatis mutandis.  The fact the Will is a simple one is of particular relevance: Simon v Byford (supra)  at §47.  None of the Plaintiff’s contentions follow nor excite the suspicion that the Deceased did not know and/or approve the content of the Will.  This is especially so when the Deceased had given instructions and confirmed the draft when he must be of sound mind, and the Deceased had checked for 10 to 20 minutes immediately before actually executing the Will.

139.  In view of my findings above, it is not necessary to further consider whether the Will is valid by virtue of section 5(2)  of the Wills Ordinance, Cap 30.

E.   CONCLUSION

140.  For the reasons stated above, the Plaintiff’s claim in these proceedings is dismissed.

141.  On the Defendants’ counterclaim, I order that the Will be pronounced in solemn form and probate of the Will be granted to the 1^st Defendant, who was named the executrix of the Will.

142.  I see no reason why costs should not follow the event.  Accordingly, I order that the costs of the Plaintiff’s claim and the Defendants’ counterclaim in these proceedings (including all costs reserved, if any)  be paid by the Plaintiff to the Defendants, such costs are to be taxed if not agreed.

143.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

144.  I order that the Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

145.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.