LAU WING KIN v. LEUNG SIU CHING

HCAP 3/2019

[2026] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2019

__________________

_________________

_________________

JUDGMENT

_________________

A.      INTRODUCTION

1.  This probate action concerns the validity of 2 wills executed by the late Lau Sing Lai (“the Deceased”) who passed away on 5 May 2018 at the age of 71.  Those wills were executed on 23 September 2016 (“the September 2016 Will”) and 5 December 2016 (“the December 2016 Will”) respectively.

2.  In brief, the plaintiff claims for pronouncement of the December 2016 Will which is opposed by the defendant on the ground of fraudulent calumny and the lack of knowledge and approval.  If the defendant’s defence succeeds, she counterclaims for the pronouncement of the September 2016 Will, which in turn is opposed by the plaintiff on the ground that it was procured by undue influence.

B.      THE UNDISPUTED BACKGROUND

3.  The Deceased was first married to Madam Chong Lai King in around early 1980.  They bore 2 sons, namely, the plaintiff (the younger son) and Lau Wai Kin (“the Elder Son”). 

4.  The Deceased and Madam Chong divorced in around 1999.

5.  The defendant is the Deceased’s second wife and lawful widow.  They got married on 1 August 2002.

6.  At all material times, the Deceased owned the following pieces of land entirely/partially as follows:

(1)     Shun Fung Wai Lot No.19 in D.D.130 (“the No.98 Property”) – the Deceased and his younger brother, Lau Kam Sum (“Uncle Sum”), held this piece of land as tenants-in-common (50% each). The plaintiff lived on this piece of land;

(2)     Shun Fung Wai Lot No.21 in D.D.130 (“the Lot 21 Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  This piece of land was left vacant at the material time;

(3)     Section A of Shun Fung Wai Lot No.27 in D.D.130 (“the Lot 27A Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  This piece of land was referred to as “the bicycle room”;

(4)     Shun Fung Wai Lot No.29 in D.D.130 (“the No.116 Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  The Elder Son lived on this piece of land;

(5)     Shun Fung Wai Lot No.40 in D.D.130 (“the No.136 Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  Uncle Sum lived on this piece of land;

(6)     Lot No.2164 in D.D.130 (“the Lot 2164 Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  This piece of land was rented out;

(7)     Lot No.2207 in D.D.130 (“the Lot 2207 Property”) – the Deceased and Uncle Sum held this piece of land as tenants-in-common (50% each).  This piece of land was rented out;

(8)     Section G of Lot No.2235 in D.D.130 (“the Lot 2235G Property”) – the Deceased wholly owned this piece of land. The defendant lived thereon together with her daughters (from her previous marriage).

7.  In around June 2016, the Deceased suffered from stroke, and consequentially the left side of his body was paralysed.

8.  From 1 August 2016 onwards, the Deceased was admitted into Yu Yee Home for the Aged in Tuen Mun (“the Elderly Home”).

9.  The September 2016 Will was executed by the Deceased and attested by the Elder Son and Mr Wong Tung Keung Eddie of Messrs. Wong Kwan & Co (who was also engaged to prepare the said will) at the Elderly Home, under which:

(1)     The defendant was appointed the sole executrix of the Deceased’s estate;

(2)     The defendant was named as the sole beneficiary of the Deceased’s estate.

10.  On 26 September 2016, the Deceased executed a deed of gift (“the September 2016 Deed of Gift”), pursuant to which the Lot 2235G Property (i.e. the defendant’s home, also known as the Stone House) was gifted by the Deceased to the defendant.

11.  In the period between 10 November 2016 and 20 November 2016, the plaintiff and the Deceased had had a number of conversations while the plaintiff was visiting the Deceased at the Elderly Home.  Those conversations had been recorded by the plaintiff (“the Audio Recordings”).

12.  On 5 December 2016, the Deceased executed the December 2016 Will at the office of Messrs. Leung Kin & Co, which was attested by Ms Lee Beatrice Ann (solicitor) and Mr Leung Yan Wah (legal executive), both of Messrs. Leung Kin & Co.  Pursuant to this will:

(1)     The September 2016 Will was purportedly revoked;

(2)     The plaintiff was appointed the sole executor of the Deceased’s estate;

(3)     The plaintiff was the sole beneficiary of the Deceased’s estate.

13.  On the same day, the Deceased also executed another deed of gift (“the December 2016 Deed of Gift”), pursuant to which ¼ share in the Lot 2164 Property and 1/6 share in the Lot 2207 Property were gifted by the Deceased to the plaintiff.

14.  The Deceased passed away on 5 May 2018, and his funeral was held on 7 July 2018.

15.  This probate action was commenced on 16 January 2019, under which the plaintiff asked the Court to pronounce the validity of the December 2016 Will in solemn form.

16.  The defendant is now challenging the validity of the December 2016 Will on the following grounds:

(1)     The Deceased executed the December 2016 Will as a result of fraudulent calumny;

(2)     he did not know nor approve the contents of the December 2016 Will at the time of execution.

17.  On the other hand, the plaintiff alleges that the September 2016 Will was executed by the Deceased as a result of undue influence exerted by the defendant.

C.      CREDIBILITY OF WITNESSES

18.  In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(1)     Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)     Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)     The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)     The court should consider a witness’ motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5)     It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(6)     On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility; 

(7)     While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

19.  I will bear the above in mind when I consider the credibility of the witnesses in the present case.

20.  At the trial, the plaintiff has called 5 witnesses, namely, the plaintiff himself, Uncle Sum, Mr Tai Chi Chung (the plaintiff’s primary school classmate), Mr Leung Yan Wah and Ms Lee Beatrice Ann; whereas the defendant has 3 witnesses, namely, the defendant herself, Ms Lau Shui Lai (the Deceased’s elder sister) (“Auntie”) and Mr Eddie Wong. 

21.  I will consider their credibility generally in turn below.   

C1.    The plaintiff

22.  The defendant’s counsel submitted that the plaintiff is not a credible witness by relying on 2 aspects of the plaintiff’s evidence:

(1)     The plaintiff’s evidence on his repayment to Auntie for a loan of $25,000 which he borrowed some years ago for the purpose of paying university tuition fees;

(2)     His evidence which “smears” the character of the defendant.

23.  As far as the first matter is concerned, it is in fact a peripheral matter which does not concern the main issue of the present action.  It relates to the plaintiff’s explanation as to whether he has repaid Auntie for the said loan of $25,000.

24.  The defendant’s counsel submitted that the plaintiff had given 6 versions of evidence in this regard.

25.  With respect, I disagree that the plaintiff had been inconsistent in his evidence.  In gist, he explained that:

(1)     He initially proposed to Auntie that he would repay her by monthly instalments of $1,000 each, but Auntie told him that there was no hurry, and he could wait until he had saved enough money to repay her at one go;

(2)     After their relationship turned sour, she did not reply to his message even though he had tried to communicate with her;

(3)     Subsequently, Auntie approached the plaintiff and asked for repayment;

(4)     In the end, they agreed that the loan which he borrowed might be set off against the defendant’s liability to repay the Deceased for $50,000.

26.  The defendant’s counsel laid much emphasis on the plaintiff’s oral evidence in court at one stage that there was no repayment to Auntie because Auntie refused to communicate with him.  However, in my view, that was only because the plaintiff did not give a complete answer when he was asked about the repayment, and he stopped short of mentioning about the subsequent development of the matter after saying that Auntie refused to reply to his messages.  Having said that, it should be borne in mind that the “set-off” arrangement which he mentioned in court subsequently was clearly referred to in his witness statement.  That apparently is not something that he made up in the witness box.

27.  The second submission which the defendant relied on is that the plaintiff had “an agenda in smearing the defendant”[1], and that the plaintiff had given unfounded statements in undermining the defendant’s relationship with the Deceased.  Her counsel has given 2 examples as follows:

“(a) P gave evidence that ever since D came in Hong Kong, she never took care of the Deceased. After it was pointed out to him that Uncle Sum stated that D took care of the Deceased at least in the first few years after her coming to Hong Kong, P stated that the Deceased would sleep very soon after he went home at night, and he was not sure how much time D could take care of him.

(b)      When P stated that the relationship between D and the Deceased worsened in 2008, what P really meant was that D had to go to work, and the Deceased would be required to cook alone when she was at work.”

28.  In my view, the criticism made by the defendant’s counsel is unjustified:

(1)     It was not the plaintiff’s evidence that the defendant “never took care of the Deceased” ever since she came to Hong Kong.  The plaintiff only stated that the Deceased had to cook for himself before he suffered from stroke in 2016;

(2)     Neither did the plaintiff state that the relationship between the Deceased and the defendant turned sour in 2008.  That is a misinterpretation of his evidence.  In fact, the plaintiff admitted that when the defendant first moved to Hong Kong in 2008, her relationship with the Deceased was quite good.  It was only after around 2 – 3 years that the relationship started to get worsened. 

29.  On my part, I hold the view that the plaintiff is an honest witness.  Apart from the fact that the defendant’s challenge of his evidence cannot stand, I could see that he did not hesitate to admit to matters which are not favourable to his case, for example, he frankly admitted that the defendant did try to obtain the Deceased’s body after his demise.

C2.    Uncle Sum

30.  Uncle Sum is the Deceased’s younger brother.

31.  While Uncle Sum is not a beneficiary in either of the subject wills, I do not think he should be described as an independent witness as suggested by the plaintiff’s counsel, because:

(1)     He is apparently much more close to the plaintiff than to the defendant (the plaintiff admittedly had been taken care of by Uncle Sum until the plaintiff became a teenager);

(2)     Obviously, Uncle Sum would be much more comfortable if the other 50% interest in the No.136 Property (i.e. where Uncle Sum is living) falls into the hand of the plaintiff (pursuant to the December 2016 Will) rather than the defendant (pursuant to the September 2016 Will).

32.  That may well be the reason why Uncle Sum tended to exaggerate when he gave evidence against the defendant in court.  For example, he stated that the defendant had never taken care of the Deceased.  This cannot be true because, according to Uncle Sum’s own witness statement, the defendant had cooked for the Deceased at least in the first few years since she came to Hong Kong from the Mainland.  Having said that, I do not think this part of the evidence is important at all, since that concerns matters which happened before the defendant’s “Love Letters” (see further Section E1 below).

33.  In any event, I do not think his evidence is of any particular importance.

C3.    Mr Tai Chi Chung

34.  Mr Tai was the plaintiff’s primary school classmate.  His short evidence was not really challenged.  I accept his evidence that:

(1)     In around late August 2016, he and the plaintiff visited the Deceased at an elderly home, and they brought along a new television set with them for installation thereat;

(2)     In the period between 2016 and 2018, he had visited the Deceased several times together with the plaintiff, during which the Deceased could invariably communicate with them normally.

C4.    Mr Leung Yan Wah

35.  Mr Leung Yan Wah was a senior conveyancing clerk of Messrs. Leung Kin & Co before his retirement in 2023.  He was nearly 85 years old by the time of the trial.

36.  I do not think it can be disputed that Mr Leung was not a sharp witness at all.  There were many times when he could not understand the questions which Mr To asked, and he had also contradicted himself on some matters.

37.  Be that as it may, I find him to be an honest witness.  I am satisfied that he had tried to assist the court in the best way he could, rather than to give evidence for the sole purpose of boosting the plaintiff’s case.

38.  Furthermore, although Mr Leung had given evidence on various matters which were not contained in his witness statements, I accept that it is more likely than not that what he supplemented verbally in court (except one matter which will be referred to in the following paragraph) are the truth.  In particular, I find that he had indeed:

(1)     taken instructions directly from the Deceased on the content of the new will before 5 December 2016;

(2)     explained to the Deceased that the making of the December 2016 Will would revoke all previous wills which he had made in the past;

(3)     asked the Deceased why he had decided not to leave anything to his wife, in respect of which the Deceased answered that his wife had been sufficiently provided;

(4)     explained the content of the December 2016 Will to the Deceased before he executed the same.

39.  The only exception is Mr Leung’s oral evidence that he did not know in December 2016 about the existence of the September 2016 Will.  As the defendant’s counsel pointed out, this contradicts Ms Lee’s evidence that it was Mr Leung who told her about the September 2016 Will before the meeting on 5 December 2016.  If Mr Leung did not know about the September 2016 Will himself at the time, he could not have told Ms Lee about it.  In my view, it is more likely than not that Ms Lee’s evidence represents the fact, and that Mr Leung has forgotten about this episode.  It cannot be emphasized enough that Ms Lee is an independent witness, and in my view there is no reason why she had to give any evidence which she knew was not the truth.

40.  The defendant’s counsel challenged Mr Leung’s evidence by suggesting that he could not remember this case clearly because Mr Leung had dealt with many files in the past and because of passage of time.  I do not accept this argument.  This is because:

(1)     the unchallenged evidence of Mr Leung is that he had known the Deceased since they were young.  It is therefore, in my view, not surprising that Mr Leung could remember what happened in this particular case;

(2)     while I agree that the passage of time might indeed affect Mr Leung’s recollection of the minute details of the incident, in my view, that would not have strong impact on the evidence as referred to in [38] above. 

41.  The fact that Mr Leung and the Deceased had known each other for a long time further reinforces my belief that Mr Leung would be even more cautious at the material time to ensure that the will that he was going to draft would reflect the Deceased’s intention.  In this regard, it should be noted that there was nothing (and the defendant did not suggest any) which would prompt Mr Leung to lean towards protecting the plaintiff’s rather than the defendant’s interest.

C5.    Ms Lee

42.  Ms Lee is a very experienced solicitor who was qualified in 1994. 

43.  She did not know the Deceased beforehand.  There is no reason why she has to give evidence in favour of the plaintiff.

44.  Despite the fact that she was asked to give evidence on a matter which happened around 9 years ago, I accept her evidence that on 5 December 2016:

(1)     She had explained the content of the December 2016 Will to the Deceased before he executed the same;

(2)     She had explained to the Deceased that the execution of the December 2016 Will would have the effect of revoking the Deceased’s previous will;

(3)     She had also asked the Deceased why he did not leave anything to his wife, and the Deceased answered that he had provided sufficiently for her;

(4)     She had warned the Deceased that if he did not leave anything to his wife, his wife might sue the plaintiff in future.

45.  As far as the Deceased’s previous will is concerned, Ms Lee told this Court that she knew that the Deceased had executed another will a few months prior to the date of the meeting (5 December 2016) because Mr Leung had told her about it.  However, on the other hand, Mr Leung’s evidence was that he had no knowledge about such a matter at the time.  As aforesaid, I prefer Ms Lee’s evidence.  In my view, there is no reason why Ms Lee had to make up evidence to assist the plaintiff in the present case. Further, I have more confidence on Ms Lee’s memory over that of Mr Leung given his old age.

C6.    The defendant

46.  I regret to say that I am not impressed by the defendant as a witness at all, as her evidence bears many features of unreliable and even untruthful evidence: Much of her evidence is internally inconsistent and inherently improbable, and she would always use “not recall” as the means to avoid answering questions.  Further, it can be seen that she had been trying to smear the plaintiff and Uncle Sum without justification.

47.  To illustrate these points, I only need to quote the following examples:

(1)     In her evidence[2], she alleged that the Deceased had transferred $150,000 from his Hang Seng Bank account (which had all along been managed by the Elder Son) to her account in around August 2016 so as to prevent the plaintiff from taking the said sum of money from the account.  However, she admitted in court that in fact the only persons who were able to withdraw money from that account were the Deceased and the Elder Son.  That means the defendant’s evidence on the reason for the transfer does not make any sense.  In my view, she was not truthful on the matter, and was trying to conceal the real reason for the said transfer.  She also tried to use the opportunity to smear the plaintiff.

(2)     In her witness statement, she stated that since Auntie and she were worried that the plaintiff and Uncle Sum would take away and use the Deceased’s HKID card against the interest of the Deceased, Auntie and she kept the said HKID card at the Elderly Home, and expressly instructed that the Elderly Home should inform her and Auntie if anyone wanted to obtain the card.  However, in her oral evidence, she said in fact it was the Deceased but not Auntie and herself who was worried.  This is a material part of her evidence and such inconsistency demonstrates the unreliability of her evidence.

(3)     Further, I take the view that the reason why she changed her evidence (to say that it was the Deceased who was worried that the plaintiff and Uncle Sum would take away and use the Deceased’s HKID card against the interest of the Deceased) was because she wanted to give this court an impression that the Deceased did not trust the plaintiff and Uncle Sum.  However, such a new version of fact does not make sense, because if it was the Deceased who was worried, then the defendant would not have asked the Elderly Home to inform her and Auntie if anyone wanted to take away the Deceased’s HKID card.  Instead, they would have (or the Deceased would have) asked the Elderly Home to inform the Deceased about it.  

(4)     She also tried to give the Court an impression that Uncle Sum is a greedy person when alleging that, within a week of the Deceased moving into the Elderly Home, Uncle Sum took over from the Deceased to collect rent from the Deceased’s tenants without first seeking consent from the Deceased and herself.  She then alleged that Uncle Sum often requested the Deceased to let him collect the rent, and the Deceased felt annoyed by him over and over again, and finally agreed to Uncle Sum’s suggestion.  What the defendant did not say in her evidence is that the Deceased’s interest in the lands which were rented out (the Lot 2164 Property and the Lot 2207 Property) is actually as same as Uncle Sum’s interest (50% each).  It is therefore natural that Uncle Sum would have to take up the task of collecting rent from the tenants when the Deceased had to stay in the Elderly Home on a permanent basis.  I therefore do not think Uncle Sum had to ask the Deceased “over and over again” as alleged.  In relation to her allegation that Uncle Sum’s refusal to pay back the rent collected to the Deceased, that is inherently improbable in light of the harmonious relationship between the Deceased and Uncle Sum as shown by the Audio Recordings (Uncle Sum visited the Deceased every week).

(5)     The defendant’s suggestion that the Deceased had instructed her not to pay for the monthly fees of the Elderly Home for 2 months so as to force Uncle Sum to pay by using the rental collected by him also does not make any sense. If Uncle Sum was greedy enough to keep the entirety of the rental received to himself, it would be beyond imagination that he could be forced to use it to pay for the Elderly Home fees for the Deceased.

(6)     The incredibility of the defendant’s evidence may also be demonstrated by reference to her evidence on the timing when she knew that the Deceased would leave the entirety of his estate to her.  In this regard, she has given a number of different versions of evidence:

(a)     In her witness statement, she stated that:

“All along I had no knowledge of the Deceased’s intentions to make a will and gift to me. I found out about his intentions and his discussions with the Elder Son only when I was asked to attend the signing of the [September 2016] Deed of Gift.”[3]

(b)     This was repeated in her supplemental witness statement[4];

(c)     In her 2^nd supplemental witness statement, she changed her evidence and alleged that:

“I also take this opportunity to correct paragraphs 15-16 of my Witness Statement where it is suggested that I only found out about the [September 2016] Deed of Gift on its date of execution. My memory did not serve me correctly. The truth is that I was aware of the Deceased’s intention to gift the Stone House to me before that, but I could not recall exactly when.”[5]

(d)     In her 3^rd supplemental witness statement, she alleged that:

4.     “I also take this opportunity to correct paragraphs 15-16 of my Witness Statement where it is suggested that I only found out about the [September 2016] Will on its date of execution.  My memory did not serve me correctly.  Upon recollection and seeing the draft witness statement of the attesting witness, Eddie Wong, I am reminded that I was the one who passed the Deceased’s instructions to Eddie Wong in preparing the draft of the [September 2016] Will.  I am therefore reminded that I must have been aware of the Deceased’s preparation of the [September 2016] Will before the date of its execution.

[…]

6.     As far as I can recall, it was in or around August or September 2016, probably in a Chinese restaurant close to the elderly home, the Deceased told me and my elder son that he would leave his entire estate to me, and I would be the one to manage it and benefit from it. […]”

(e)     When she was cross-examined in court, she said that it was only after the commencement of this action that she knew that the Deceased left the entirety of his estate to her.  She also stated that she only knew about it when her current solicitors (not Mr Eddie Wong) explained the content of the September 2016 Will to her;

(f)     She also stated during cross-examination that the Deceased had, after the execution of the September 2016 Will, told her from time to time that he had left everything to her.

In my view, it is simply incredible that she could not remember that it was she who gave instructions to solicitors for the drafting of the September 2016 Will.  It is equally incredible that she did not know that the Deceased was minded to leave everything to her by virtue of the September 2016 Will until her solicitors told her about this, given it was she who gave instructions to solicitors in the first place.  Furthermore, it is inherently improbable that the Deceased would tell her from time to time that he had left everything to her, since according to her own evidence, the instructions to draft the September 2016 Will were given by the Deceased to the solicitors through her.  In my view, the defendant was initially trying to conceal the fact that it was she who gave instructions to Mr Eddie Wong for the drafting of the September 2016 Will so as to boost her case that it was the Deceased’s own decision to give everything to her.  It was only when she found out that this would be contradicted by Mr Eddie Wong’s evidence that she changed her evidence in her 3^rd supplemental witness statement. However, she obviously was too eager to boost her case while she was giving evidence in court that she adopted the same untruthful approach like what she did in her first 3 witness statements.

(7)     Another obvious point which shows that the defendant was untruthful relates to her evidence that there was an understanding between herself and the Deceased that she would rely on his estate left to her under the September 2016 Will to take care of the Elder Son and the plaintiff[6]. First of all, this is contradicted by her own evidence that the Deceased had told her that he would leave his entire estate to her, and she would be the one to manage it and benefit from it (see [47(6)(d) above])[7]. Furthermore, there was no reason why the plaintiff had to be taken care of by her – he was already 30 years old at the material time.

(8)     The unreliability of the defendant’s evidence can also be seen from the way she answered questions.  It can be observed that she would use “not recall” to evade answering questions which were probably not in her favour.  This finding can be made despite the fact that the matters on which she was cross-examined happened long time ago, because some of those questions should not be difficult to answer (for example, how many times roughly did the Deceased tell her that he had left everything to her).

(9)     The defendant also changed her evidence concerning who told her that “the plaintiff often tried to say things to the Deceased to influence his perception and [his views on the defendant], the Elder Son and other matters (向他打毒針) both before and after the execution of the [September 2016 Will]”.  In paragraph 19 of her witness statement, she said she was told about this by a caretaker of the Elderly Home.  However, she said in court that it was in fact the Deceased who told her this.  Again, this shows that her evidence is incredible – if someone had ever said this to her, I do not believe that she would make a mistake as to the maker of the statement.  In my view, she was trying to make her evidence more forceful by saying in court that the statement came from the Deceased directly.

48.  The defendant’s counsel reminded this Court that the defendant is not a very educated person.  That may be so.  However, in my view, this should not affect the defendant’s ability to give truthful evidence on factual matters.

49.  Another matter which, in my view, also shows that the defendant is not a truthful witness at all relates to the “Love Letters”.  I will go into the details of this matter under Section E1 below.

C7.    Auntie

50.  Auntie was already over 82 years old when she gave evidence in court.  Be that as it may, she had no difficulty in understanding the questions asked and she appeared to be very alert throughout her cross-examination.

51.  Having said that, it seems that some of her evidence do not represent the truth.  For example:

(1)     She alleged in her witness statement that the Deceased thought the plaintiff was a greedy person.  I doubt whether the Deceased really said so.  Even if he did, I doubt whether the Deceased held the view that the plaintiff was such a greedy person that he should not be trusted.  This is because, if the Deceased doubted the plaintiff to such an extent, he would not have named the plaintiff as the sole beneficiary of his estate in the December 2016 Will. See further Section E2 below.

(2)     Auntie also insisted in court that it was she alone (and the defendant was not around at the material time) who gave instructions to the Elderly Home that she should be informed if anybody asked for the Deceased’s HKID card which was kept by the Elderly Home.  This is contradictory to her own witness statement in which she asserted that the instructions were given by her together with the defendant.  In my view, she was trying to assist the defendant while she was giving oral evidence by giving the court an impression that the defendant did not have anything to do with making sure that the Deceased would not make any will in favour of the plaintiff subsequent to the September 2016 Will.

(3)     Furthermore, while she said that she and the defendant were not told about the date of the Deceased’s funeral and that the defendant had been disallowed by the plaintiff to participate in the arrangement of the funeral, she alleged that after she had been informed about such a date, she did not inform the defendant accordingly.  Such evidence is totally unreasonable in the circumstances of the present case, where, according to her, she was only informed about it on the day before the funeral.  Given her closeness to the defendant, it is inherently improbable that she did not call up the defendant immediately to make sure that the defendant knew about it so that the defendant could attend the funeral.

52.  I would therefore conclude that Auntie’s evidence should be considered very cautiously, and should not be accepted lightly.

C8.    Mr Eddie Wong

53.  The plaintiff’s counsel does not suggest that Mr Wong’s evidence is at any rate untruthful.  I accept that he is a truthful witness whose evidence should be accepted. 

D.      THE ISSUES

54.  By virtue of the Agreed List of Issues, parties agreed that the following issues have to be resolved by the Court:

(1)     Whether the Deceased executed the December 2016 Will as a result of fraudulent calumny –

(a)     Whether the subject representations had been made by the plaintiff to the Deceased;

(b)     If so, whether those representations were false;

(c)     If so, whether the plaintiff knew that those representations were false; or whether he made those representations recklessly not caring whether they are true or false;

(d)     If so, whether the plaintiff made those representations with the specific purpose of inducing the Deceased to execute the December 2016 Will;

(e)     Whether the Deceased were induced to execute the December 2016 Will.

(2)     Whether the Deceased had knowledge and approval of the content of the December 2016 Will.

(3)     Whether the Deceased executed the September 2016 Will as a result of undue influence exerted by the defendant on the Deceased.

55.  Some of the sub-issues under fraudulent calumny are not required to be ruled on.  For example, there is no dispute that all the subject statements had indeed been made by the plaintiff, as they were all recorded.  The issues relating to fraudulent calumny will be discussed under Section E4 below.

56.  However, in order to decide on the issues relating to fraudulent calumny and knowledge and approval, in my view, it is important for the court to make findings on:

(1)     Disputes in relation to the Love Letters;

(2)     The relationship between the plaintiff and the Deceased; and

(3)     The relationship between the defendant and the Deceased.

57.  I will consider the above matters in turn below first under Sections E1 to E3.

E.      DISCUSSION

E1.    The Love Letters

58.  These concern a total of 6 love letters between a person known as 諶國汀 (“Mr Cham”) and “梁小清”.  It appears on their face that 5 of those letters were sent by Mr Cham by post to No.156 Shun Fung Wai, Tuen Mun (i.e. the defendant’s home address).  It also seems that Mr Cham was imprisoned in Hei Ling Chau Correctional Institution at the material time.  The remaining letter appears to be a love letter written by “梁小清” to Mr Cham.

59.  It is the plaintiff’s case that the said “梁小清” referred to in the preceding paragraph is in fact the defendant, who strenuously denied, and alleged that she has never seen those love letters before.  In other words, if she was telling the truth, then those letters must be fake, and were created to give a false impression that the defendant had been having an affair with Mr Cham.

60.  When the defendant was cross-examined about those letters, she explained that:

(1)     Mr Cham is the younger brother of her niece’s husband;

(2)     She was illiterate and therefore she could not write any love letter to Mr Cham;

(3)     She did not know Mr Cham before he was imprisoned;

(4)     It was her niece (who lived in the Mainland) who asked the defendant to take her to Hei Ling Chau Correctional Institution for the purpose of visiting Mr Cham, as the niece did not know her way in Hong Kong;

(5)     She did so accordingly, but she only took her niece to the entrance of the Correctional Institution, without visiting Mr Cham herself.  In other words, she had never met Mr Cham face-to-face at all;

(6)     It was not she but her niece who gave Mr Cham her (the defendant’s) home address (No.156 Shun Fung Wai, Tuen Mun);

(7)     Her niece did not tell the defendant why she had to give the defendant’s address to Mr Cham.

61.  It can be seen from the above explanation that “Mr Cham” is a real person, and that Mr Cham indeed had her address.

62.  In my view, these cannot be coincidences.

63.  On the other hand, the explanations given by the defendant are simply incredible.  As pointed out by Mr Ng for the plaintiff, she did accept in her oral evidence that she “knew” Mr Cham, and that she would not have so admitted if she had never met or contacted Mr Cham before.  There was also no reason why her niece had to give the defendant’s address to Mr Cham if the defendant’s involvement in the whole matter was only limited to showing her niece the way to Hei Ling Chau Correctional Institution.

64.  In Auntie’s evidence, she stated that she had been told by somebody staying in the Elderly Home that those letters were typewritten by the plaintiff by using a computer.  This suggestion is totally without basis and I have no hesitation in dismissing it because:

(1)     Those letters were all handwritten;

(2)     Even the defendant admitted that neither the plaintiff, the Elder Son, Uncle Sum nor Auntie knew Mr Cham.  It was therefore impossible that any of them could write these letters for the purpose of smearing the defendant.  There was also no suggestion that anyone else (whether members of this family or outsiders) would have any reason to make these letters up.

65.  Considering the love letters in the round, I am of the view that it is more likely than not that the love letters were indeed genuine communication between Mr Cham and the defendant, and that there was a love affair between them. 

66.  As far as the letter which appears to have been written by the defendant to Mr Cham, it is a mystery as to why there was such a letter found if it had been posted to Mr Cham.  However, I do not think that matters so long as it is not probable that it was created by someone with the intention of framing the defendant.

67.  The defendant stated that she could not have written this letter because she is illiterate.  She also alleged that this fact was well known to the Deceased who would not have believed that this letter was written by her.

68.  It seems there is some truth that the defendant is indeed illiterate.  However, that does not mean that the Deceased believed that those letters were fake.  In fact, the Audio Recordings show quite the opposite, because the Deceased said that the defendant had asked someone else to read the letters (presumably Mr Cham’s letters) over to her[8]. Indeed, having heard the Audio Recordings, it is apparent to me that the Deceased firmly believed that the defendant was having an affair with Mr Cham. For example, in the recording taken on 20 November 2016 at 1:08pm, it was the Deceased himself who mentioned about the love letters in the first place.  As to the love letter which seems to have been written by the defendant to Mr Cham, it is a mystery (and there is no evidence on) how come the defendant could “write” this letter if she is illiterate.  However, what I can find is that it is extremely unlikely that it was faked by someone.  In any event, the most important issue in this regard is whether that had affected the Deceased’s assessment as to whether there was indeed an extra-marital affair between the defendant and Mr Cham.  In my view, it certainly had not.

69.  Indeed, Auntie also confirmed that it was the Deceased who showed her the love letters.  In my view, it is more likely than not that the Deceased at the material time was trying to show Auntie how bad the defendant was. However, as shown by the Audio Recordings, Auntie did not believe the genuineness of those letters, and as a result the Deceased felt quite aggrieved.

70.  This episode of the Deceased showing the love letters to Auntie also supports a finding that the Deceased had already formed his view that the love letters were genuine letters between the defendant and Mr Cham even before 10 November 2016 (the date of the 1^st part of the Audio Recordings).

E2.    Relationship between the plaintiff and the Deceased

71.  The defendant and Auntie had tried to give this Court a very bad impression on the plaintiff.  They described him as, among other things, a cold person who was greedy, and had only an ordinary relationship with the Deceased.  They also said that the Deceased was well aware of his greed. 

72.  I do not accept that these allegations are supported by the contemporaneous documents and other reliable evidence.

73.  Firstly, the defendant relied on a progress note of Tuen Mun Hospital dated 2 September 2016 (a record on a consultation session attended by the Deceased together with Auntie, the defendant and the Elder Son) in which it was stated that:

“He was most preoccupied with monetary issue – his younger son took ~$180K from him. But now he did not turn up or visit patient at all.”

74.  I do not accept that the content of this part of the progress note is reliable for the following reasons:

(1)     It seems that Auntie’s evidence at paragraph 4 of her witness statement is consistent with the plaintiff’s assertion that the money concerned (around $170,000 - $180,000) were given to him for safe-keeping;

(2)     Although on one hand the defendant disputed the above (and she also alleged that the plaintiff had “taken away most of the money in the [Deceased’s] HSBC account” before early September 2016[9]), that was in fact contradicted by her own evidence at paragraph 63 of her witness statement in which she admitted that she had asked the plaintiff to give her $50,000 when the Deceased first moved into the Elderly Home (in around August 2016), and that the plaintiff did give her that sum of money which was spent by her on the payment of deposit of the Elderly Home.  The plaintiff’s behaviour is totally inconsistent with the content of the progress note;

(3)     According to the unchallenged evidence of Mr Tai (which I accept), he had visited the Deceased together with the plaintiff and talked to the Deceased in late August 2016.  In other words, the Deceased must have knowledge about the plaintiff’s visit on that occasion.  There is therefore highly improbable if not impossible for the Deceased to tell the doctor on 2 September 2016 that “but now [the plaintiff] did not turn up or visit patient at all”;

(4)     According to the defendant’s own evidence[10], she had also been told by a caretaker at the Elderly Home that the plaintiff often visited the Deceased.

75.  Secondly, if the plaintiff was known to be greedy, the defendant would not have passed the Deceased’s bank cards to the plaintiff for safe-keeping.

76.  Thirdly, according to the Audio Recordings, the Deceased seems to be having a close relationship with the plaintiff.  It is also evident that the Deceased trusted the plaintiff, to the extent that he was willing to give all his estate to the plaintiff, and let the plaintiff distribute part of which to the Elder Son.  This is inconsistent with Auntie’s suggestion that the Deceased viewed the plaintiff as a greedy person.

E3.    Relationship between the defendant and the Deceased

77.  The defendant and Auntie have tried to paint a picture which shows that the relationship between the defendant and the Deceased was very good at the material time.

78.  I do not accept their evidence, because the Audio Recordings show that:

(1)     the Deceased often used “呢個女人” to describe the defendant[11]. He would not have done so if his relationship with the defendant was good at the material time;

(2)     the Deceased even said that he was going to divorce the defendant[12];

(3)     it is apparent that the Deceased believed that the defendant committed adultery with Mr Cham[13];

(4)     the Deceased also described the defendant as “cunning”[14];

(5)     the Deceased even wanted to get back the 2 bank cards with which he had entrusted the defendant[15];

(6)     the defendant seldom visited the Deceased subsequently: on 20 November 2016, when the Deceased said that he wanted to get back the 2 bank cards from the defendant, he said that he would ask Auntie to get them back if he saw Auntie.  If the defendant did visit the Deceased as often as she alleged, he would have said that he would ask the defendant for the cards directly.  He would not have said that he had to ask Auntie for the cards.

E4.    Fraudulent calumny

E4.1  The legal principles

79.  In Yip Sau Ching v Yip Che Shing & Others [2025] 3 HKC 309, [2025] HKCFI 657, this Court considered the legal principles applicable to a claim of fraudulent calumny as follows:

“139. In Kunicki v Hayward [2016] EWHC 3199 (Ch), it has been held that a successful claim of fraudulent calumny shall include the following 6 elements:

(1) The representation was made to the testator;

(2) The representation made by the representor was false;

(3) The representation was about the character of the existing or potential beneficiary;

(4) The representation was made for the purpose of inducing the testator to alter his testamentary dispositions (‘Element 4’);

(5) When the representor made the representation, he knew that it was untrue, or recklessness as to its truth;

(6) The will was made only because of the fraudulent calumny (‘Element 6’).

140. However, as far as Element 4 is concerned, the defendants submitted that it is not necessary for them to prove that Pang made the Representations specifically for the purpose of inducing Father to alter his testamentary dispositions. It was said that all they had to do is to prove that the Representations were material and that Pang had the intention to deceive, because common law presumes that the representee would rely on the Representations. Put it in another way, it was advocated that it is not necessary for the defendants to show that Pang had the specific intention of persuading Father to change his testamentary intention: Lowry Trading Limited & Another v Musicalize Limited & Others [2024] EWHC 142, at [47(d)]. Reliance was also placed on the case of Re Edwards [2007] WTLR 1401, in which Lewison J stated that the question is whether the testator, in making his dispositions, has acted as a free agent[16].

141. The question had been considered by HHJ Cawson QC in St Clair v King [2022] EWHC 40 (Ch). His Honour had the following to say:

‘146. […] the question that arose was as to whether it was, in fact, necessary to show that the representation had been made ‘for the purpose’ of inducing the testator to alter their testamentary disposition, or whether it was sufficient to rely upon the more general principle applicable for the purposes of civil liability for fraud, that it must be shown that the representor intended that the representee should rely on the representation, there being a rebuttable presumption that the representor did so intend, and it not being necessary to show that the representor intended the representee to act on the representation in the precise way in which he did act – see e.g. Goose v Wilson Sandford & Co (No.2) [2001] Lloyd’s Rep PN 189. It was argued on behalf of the appellant in Christodoulides v Marcou that the older authorities demonstrated that a stricter approach than the general principle was applicable in the case of fraudulent calumny, requiring that it be established that the relevant representation had been made for the purpose of inducing the testator to alter their testamentary disposition, and that the trial judge had failed to make any finding as to purpose.

147. Morgan J considered the relevant authorities, including in particular Allen v McPherson (1847) 1 HL Cas 191 and Boyse v Rossborough (1856) 6 HL Cas 2. Morgan J at [55] identified that in Boyse v Rossborough at pages 48-49, Lord Cranworth LC had stated a test for undue influence, including fraud, which turned upon the will being executed in consequence of the fraud, rather than specifically turning on the purpose of the fraudster. This would, of course, be consistent with the general principle. However, as Morgan J went on to say, at page 51, Lord Cranworth stated that the undue influence must be exercised ‘in relation to the will itself, not in influence in relation to other matters or transactions’. Further, at page 53, in relation to the allegation of fraud in that case, Lord Cranworth asked whether there was evidence to show that the representations were made ‘in order to induce’ the testator to change his intentions.

148. On this basis, Morgan J concluded that there was ‘obviously scope for argument’ as to whether in considering a challenge to a will, the Court ought to apply the general principle, or a stricter principle that requires the challenger to show that the fraud was practised for the specific purpose of inducing the testator to change their testamentary disposition. In the event, because the point had not been taken below, Morgan J refused permission to appeal on this point.

149. Ultimately, as in Christodoulides v Marcou, the present case does not turn on a resolution of this issue, and I do not need to decide. However, in the light of the approach taken by the older authorities, and in particular the remarks of Lord Cranworth in Boyse v Rossborough at pages 51-53, should it have been necessary to do so, I would have been inclined to proceed on the basis that a stricter test based on establishment of purpose is required in the case of fraudulent calumny.

150. Courts of Probate have historically taken a stricter approach to establishing a case of undue influence than have Courts of Equity, holding that undue influence is not to be presumed as against a will proved to have been executed with due solemnities by a person of competent understanding and apparently a free agent – see e.g., Parfitt v Lawless (1872) LR 2 P&D 462 at 468-469, per Lord Penzance. This stricter approach requiring the case to be made out on the basis of affirmative evidence rather than the application of a presumption is, as I see it, justified on the basis that a Court ought to be slow to upset a duly executed will not least because a challenge to a will on the grounds of undue influence will often involve a challenge made years after the event of the making of the will against parties who were unlikely to have been involved in the process. A stricter approach that further requires the purpose of the representation to be shown to be to induce the testator to alter his testamentary dispositions, rather than something else, is, in my judgment, entirely justified on a like basis.’ (emphasis added)

142. While what the learned Judge said was obiter, I respectfully agree with his analysis. I see no reason why the stricter test should not be applicable in the context of fraudulent calumny.

143. It has been emphasised by Mr Yu SC that the question is whether Father was a ‘free agent’ at the material time (see Re Edwards above), and that he regarded this as the reason why no ‘specific purpose’ on the part of Pang has to be established, so long as Father’s mind had been ‘poisoned’, because that means he was no longer a ‘free agent’. With respect, I do not agree with this analysis, for the question of whether the testator was a free agent actually concerns another element, namely, whether the will was made because of the fraudulent calumny. However, the element of ‘specific purpose’ is a separate and different ingredient of the claim.

144. In relation to Element 6, both parties have referred this Court to the following paragraphs in St Clair v King (supra) which approach I would gratefully adopt as follows:

‘151. So far as Mr Jonathan Klein’s requirement (f) in Re Hayward is concerned, the issue is as to whether it is correct that it is necessary to show that the disputed will is ‘only’ made because of the fraudulent calumny. At [59] in Christodoulides, Morgan J stated that this formulation might well be appropriate on the facts of Re Hayward, but that he would not regard it as a correct statement of the relevant law. He went on at [59] to say:

‘The question for the court is one of causation or inducement. The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail. If there are other possibilities or other explanations and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail. Conversely, although the court is given other possible explanations, if the court is nonetheless satisfied that on the balance of probabilities that the calumny did induce the will, then the claim succeeds. That is what is meant by the references to consistent and inconsistent hypotheses in re Edwards, which is itself based on Craig v Lamoureux [1920] AC 349. However, the use of the word ‘only’ should not be understood as requiring a finding that there must have been no other reason operating in conjunction with the effect of the fraud for the testator to change his or her intentions.’

152.     Based on well-established authorities, I am satisfied that this must be the correct approach, and I consider that Mr Jonathan Klein’s requirement (f) is better restated as: ‘The fraudulent calumny induced the testator to make the disputed will.’ ”

80.  To summarise, in order to establish fraudulent calumny, it is necessary for the party who challenges a will to prove on the balance of probabilities that:

(1)     The representation was made to the testator;

(2)     The representation made by the representor was false;

(3)     The representation was about the character of the existing or potential beneficiary;

(4)     The representation was made for the specific purpose of inducing the testator to alter his testamentary dispositions;

(5)     When the representor made the representation, he knew that it was untrue, or recklessness as to its truth;

(6)     The fraudulent calumny as a matter of fact induced the testator to make the disputed will.

(“Element (1)” to “Element (6)”)

81.  I should also add that:

(1)     it follows from the above that if the testator already held a certain view on the character of the existing or potential beneficiary even before the representor made the representation on such a character which is as same as the view held by the Deceased, then the claim of fraudulent calumny is bound to fail.  This is because it is a matter of logic that, in such a situation, Element (6) cannot be established on the balance of probabilities;

(2)     when considering whether the alleged fraudulent calumny could have caused the new will to be made in the terms it was, independent legal advice is one of the factors which should be taken into account: Todd v Parsons & Another[2019] EWHC 3366 (Ch)at [159][17].

E4.2  An overview of the claim herein

82.  The whole basis of the defendant’s claim of fraudulent calumny is the Audio Recordings which recorded the conversations between the plaintiff and the Deceased on the following dates:

(1)     10 November 2016, starting at 8:08pm;

(2)     12 November 2016, starting at 7pm;

(3)     20 November 2016, starting at 1:08pm;

(4)     20 November 2016, starting at 1:31pm;

(5)     20 November 2016, starting at 1:48pm;

(6)     20 November 2016, starting at 2:29pm.

83.  There was another very short recording which recorded a conversation which took place on 26 October 2017.  However, the content of that recording is totally irrelevant for the present purpose.

84.  Having considered the Audio Recordings[18] and other relevant evidence, I am of the view that the defendant’s claim of fraudulent calumny should be dismissed for the following reasons:

(1)     According to the plaintiff’s evidence, the Deceased was already minded to make a new will (in which the Deceased would not leave anything to the defendant) before the plaintiff started to make the Audio Recordings on 10 November 2016, and it was because of this that the plaintiff, in order to keep a record of the intention of the Deceased, decided to record what the Deceased was thinking at the time in his own words.  I accept the plaintiff’s evidence in this regard.  It follows that it is futile for the defendant to rely on what the plaintiff had said to the Deceased from 10 November 2016 onwards[19] and allege that the Deceased had changed his mind on the beneficiary of his estate.  He didn’t (as far as the defendant’s entitlement under the December 2016 Will is concerned).  Hence, Element (4) and Element (6) of fraudulent calumny cannot be established in the present case.

(2)     Alternatively, even if the Deceased had not decided to revoke the September 2016 Will before 10 November 2016, it can be shown from the Audio Recordings that he had already done so on 10 November 2016, even before the plaintiff had allegedly made any false representation to the Deceased.[20]

(3)     Moreover, I do not accept the defendant’s case that the plaintiff, when he made the relevant representations, had the specific purpose of inducing the Deceased to alter his testamentary dispositions. This is because the plaintiff did not have to, given the Deceased had already had a very bad impression on the defendant.  I emphasize what I found and stated in Sections E1 and E3 above.  Hence, the defendant has failed to prove Element (4) and Element (6) of fraudulent calumny.

85.  In the submissions of the defendant’s counsel, it has been emphasized that the Love Letters were not recent events (but took place in 2012 – 2014), and that the Deceased must have knowledge about those matters when he made the September 2016 Will.  It was therefore submitted that if the Deceased’s decision on inheritance would have been affected by this event, he would not have made the September 2016 Will at all.  I do not accept this argument.  If one properly understands the content of the Audio Recordings, one would appreciate that the Deceased explained that it was only because he had been scolded by Auntie frequently[21] that he had agreed to make the September 2016 Will.  He had also been asked by Auntie to give the defendant everything he had[22]. The Deceased apparently had had a re-consideration of the whole matter upon being asked by the plaintiff to do so.  It can also be seen that the Love Letters were very much in the Deceased’s mind at the material time.

86.  Given the above findings, strictly speaking, I do not need to deal with the individual representations any further.  However, for the sake of completeness, I would do that briefly below, and explain the additional reasons why the defendant’s claim should be dismissed.

87.  For the purpose of fraudulent calumny, the defendant relies on a total of 7 representations.  They have been categorized by the parties as the 1^st to 7^th Representations.  I will adopt this categorization below.

E4.3  The 1^st Representations

88.  The defendant alleged that the plaintiff had represented to the Deceased that the defendant is a cunning, dishonest and unreliable person who practises deception and trickery on the Deceased.

89.  The defendant has picked 3 statements[23] made by the plaintiff to support her case that the plaintiff had made the above representations:

(1)     “[…] 我寧願第二時即係我原本個阿媽真係俾佢啲 ... 俾佢啲屋企人呃左,都唔想俾呢個女人呃左”;

(2)     “[...] 呢個女人，其實佢實際上佢個心都唔係呢度嘅，仲...仲咁恐怖，成日做埋咁多假嘅嘢，咁多手段，攪咁多手段，我覺得好衰”;

(3)     “真係好狡猾好有手段，呢個女人”.

90.  In my view, given the Love Letters (which show that the defendant has had an affair with Mr Cham), the 1^st Representations were not false at all – the defendant had indeed developed an intimate relationship with Mr Cham behind the back of the Deceased, and in this sense, she had been “dishonest”, “unreliable” and had practised “deception and trickery” on the Deceased.  The defendant therefore fails to prove Element (2).

91.  In addition, I accept the plaintiff’s evidence that he honestly believed everything that he said to the Deceased at the material time.  This means the defendant has failed to prove Element (5) of fraudulent calumny.  In this regard, the defendant has taken a pleading point and argued that the plaintiff is not entitled to run the case that he honestly believed what he said in his conversation with the Deceased since, it was said, the plaintiff did not plead a positive case in this regard.  With respect, this argument is misconceived, because the plaintiff has clearly pleaded his case in this regard at paragraph 15A of the Amended Reply and Defence to Counterclaim.

92.  The defendant also challenges that the plaintiff has not pleaded any positive case on why he considered the said representations were true.  I do not think this argument assists the defendant, since she has the burden to prove that the representations were false.

93.  As far as the description of “cunning” is concerned, this allegation is hopeless, because the Audio Recordings show that it was the Deceased who used this word to describe the defendant in the first place[24], and that the plaintiff was only echoing the view of the Deceased at the material time. 

E4.4  The 2^nd Representations

94.  The defendant alleged that the plaintiff represented to the Deceased that:

“[The defendant] is a very greedy and manipulative person, who devised a scheme to trick the Deceased into passing all his properties to her. But for an operative injunction, [the defendant] would have caused the Deceased to pass all his landed properties to her, and physically restrained him after such transfer.”[25]

95.  As a matter of background, the injunction referred to in the conversations between the plaintiff and the Deceased concerns an injunction obtained by the Deceased’s ex-wife (i.e. the mother of the plaintiff and the Elder Son) against the Deceased while they were applying for divorce years ago.  The effect of the injunction was to stop the Deceased from the disposal of some of his properties.

96.  The defendant relied on a total of 7 statements in support of the 2^nd Representations.  I do not intend to set them all out here, as they are quite lengthy.  It suffices for me to say that I am satisfied that they indeed bear the meanings summarised above.

97.  Having said that, they would not assist the defendant’s claim of fraudulent calumny, as I am of the view that the plaintiff honestly believed what he said when he uttered those statements.

98.  The defendant’s counsel queried whether the plaintiff was truly having honest belief on the effect of the injunction.  However, this attack is without basis, given the plaintiff had indeed consulted Mr Leung about the matter. 

99.  It was further argued that since Mr Leung was only a legal executive, the plaintiff had been reckless in believing what Mr Leung told him.  I do not accept this argument, as there was no reason why the plaintiff should query what he had been advised by Mr Leung whom he knew to be working in a solicitors’ firm.

E4.5  The 3^rd Representations

100.  The defendant alleged that the plaintiff represented to the Deceased that:

“[The defendant] only use the Deceased’s assets for her and her daughter’s own good, and for causing trouble to the Deceased. [The defendant] tricked the Deceased into giving her his bank cards, and a sum of HK$200,000 to benefit herself by, inter alia, settling legal fees for [the September 2016 Will] and [the September 2016 Deed of Gift].”[26]

101.  The defendant supported this aspect of her case by relying on the following statements made by the plaintiff:

(1)     “佢有 ... 佢依家有錢就會搵到律師㗎啦，佢點會唔識搞，呢啲嘢 ...”;

(2)     “佢有你嗰20萬囉，佢邊會無錢呀，嗰啲錢又唔係佢自己嘅，佢鍾意 [...] 佢用嚟打麻雀好，佢用俾佢個女讀書好，佢用嚟自己去嚟買衫好，你見佢去表哥度飲嗰時都著到好靚㗎，佢以前都無嗰啲衫嘅。[...] 嗰啲錢又係邊到攞錢嚟買吖?唔通攞佢份 8,000蚊嗰份人工嚟買咩? [...] 咪又係攞你啲錢嚟買 […]”;

(3)     “[…] 佢寧願洗多兩千五蚊都令到自己穩陣啲喎 […] 萬三呀?佢又無所謂嘅，嗰啲錢係你㗎麻，嗰二 ... 二十萬係你 [...]”.

102.  The defendant argued that the plaintiff had represented to the Deceased that the defendant had “tricked” the Deceased into giving money and the Stone House (i.e. the house in which she lived in) to her by “pretending to be pitiful”[27]. However, this description was in fact used by the Deceased himself first[28].  The plaintiff only echoed the Deceased.  In my view, when the defendant quoted the plaintiff’s statements, she had not only been selective but also unfair. 

E4.6  The 4^th Representations

103.  The defendant alleged that the plaintiff had made the following representations to the Deceased:

“[The defendant] neither cares about the Deceased nor his welfare and interests. [The defendant] would turn hostile, mean and aloof after the Deceased transferred all his properties to her.”[29]

104.  The defendant relied on the following statements made by the plaintiff to the Deceased:

(1)     “你 9 月 20 幾號已經轉左佢個名喇喎,係佢啦，DD，DD2235吖麻。[...] 你係 9 月 20 幾號已經轉左喎，咁怪唔得佢宜家咁惡死啦。”

(2)     “[...] 咁佢依家咪可以發惡囉，佢依家唔理你都得喇 [...]”.

105.  I do not agree that these statements could be taken to mean that as a matter of fact the defendant did not care about the Deceased nor his welfare and interests.  Neither can it be taken to mean that the defendant was hostile to the Deceased as alleged by the defendant.

106.  In any event, according to the finding under Section E3 above, the defendant had indeed seldom visited the Deceased after the latter’s execution of the September 2016 Will and the September 2016 Deed of Gift.  In such circumstances, the plaintiff was fully entitled to hold the view that he did.[30]

E4.7  The 5^th Representations

107.  The defendant alleged that the plaintiff had made the following representations to the Deceased:

“[The defendant] is best at spreading rumours, and she would say and continue to say bad things about the Deceased, Uncle Sum and [the plaintiff]. [The defendant] would pretend to be pitiful and deny having spread any such rumours.”[31]

108.  The defendant relied on the following statements as recorded in the Audio Recordings:

(1)     “[...] 佢成日話我哋趕佢走嗰啲，我哋真係無講過嗰喎。但唔知點解個個都可以話我哋真係想。嗱，村度啲人都無人咁講嘅，但唔知點解個大姑成日都話，你哋話要趕佢走呀，我覺得就係，呢個就係佢自己同人哋咁樣講。” (“the 1^st Statement”)

(2)     “就係佢扮可憐 [...]” (“the 2^nd Statement”)

(3)     “佢呢排，佢呢排係條村到同啲女人係到，係到訴苦喎。[...] 佢話你鬧佢喎。佢係出面同啲打麻雀嗰啲人講，不過佢最叻呢樣嘢㗎啦。” (“the 3^rd Statement”)

(4)     “係呀，佢唔認，佢唔認衰先至仲係度，依家又繼續，係出面講嘢喎，[...] 我都唔知佢喎，佢走去訴苦喎，阿叔講嘅，佢話跟住佢見到佢就唔講喇，就走左喇，但係佢走出去同佢哋講個喎。” (“the 4^th Statement”)

(5)     “佢[...] 繼續走去講下你壞話 [...]” (“the 5^th Statement”)

109.  I hold the following views in relation to the above statements:

(1)     Regarding the 1^st Statement, I accept the evidence of the plaintiff and Uncle Sum that they had never tried to kick the defendant and her daughters out of the house in which they were living, for the simple reason that the house was originally registered under the name of the Deceased (until it was gifted to the defendant by virtue of the September 2016 Deed of Gift).  In other words, the plaintiff and Uncle Sum could not have rented the house to somebody else themselves.  In such circumstances, I find that what the plaintiff stated was indeed true and what he honestly believed. Further, I do not understand how it could be said that that statement would induce the Deceased to make a new will;

(2)     In respect of the 2^nd Statement, as aforesaid, “pretending to be pitiful” was something used by the Deceased to describe the defendant in the first place;

(3)     For the 3^rd Statement, I also find that what the plaintiff told the Deceased represented the truth;

(4)     The 4^th Statement was made by the plaintiff on the basis of what Uncle Sum told him.  I find that the plaintiff honestly believed what he said at the time;

(5)     I also accept that the plaintiff honestly believed what he said when he made the 5^th Statement.

E4.8  The 6^th Representations

110.  The defendant alleged that the plaintiff had made the following representations to the Deceased:

“[The defendant] conspired with [Auntie], the Elder Son and/or her family members in carrying out one or more of the above, whether secretly or not.”[32]

111.  The defendant relied on the following statements made by the plaintiff in support of the 6^th Representations:

(1)     “呢張都係俾你睇番你一早已經轉左俾嗰個女人㗎啦，但你都，係啦，個幾月前喇喎。[...] 你 9 月幾簽名個喎。[...] 但嗰時你又唔，你隔咗咁... 嗰個大姑隔左咁耐都唔同我哋講嘅，我哋嗰時一直都話攪好啲嘢嗰陣時，係叫大家一齊坐齊，我哋就算轉俾劉煒堅或者其他人都諗住一齊全部人去架麻，但係佢哋咁衰嘅，偷偷哋做埋咁嘅嘢。宜家...”

(2)     “如果佢哋再夾埋嚟叫你去咩地方簽名，你唔好再簽喎。”

(3)     “但係佢就簽...但係你嗰 ... 但係佢依家住嗰間無禁制令㗎麻，所以嗰一間咪轉左名囉，嗰一間轉左㗎喇，但係其他嗰啲，阿叔個間、或者我嗰間、其他嗰啲你...你嗰一半都有禁制令，所以佢咪轉唔到囉，所以佢就諗住寫一張平安紙囉。第二時如果無左禁制令既時候，佢就再攞左佢囉，所以佢先至迫於無奈走呢一步渣麻，如果唔係嘅話大姑一早同佢呃左淨低嗰啲嘢喇，佢依家嗰一間都唔會轉返俾你啦，好彩其他嗰啲佢轉唔到走喳 [...]”

112.  According to the plaintiff’s evidence, which I accept, Auntie had told the plaintiff beforehand that she would ask everyone to get together and discuss the distribution of the Deceased’s estate.  However, the September 2016 Will was prepared subsequently behind the back of the plaintiff with the assistance of Auntie.  Even the Elder Son was there when that will was executed by the Deceased.  With such background, I am of the view that the statement quoted in sub-paragraph (1) above is true.

113.  The defendant submitted that it is inherently improbable that Auntie would have told the plaintiff that she would ask everyone to get together and discuss the distribution of the Deceased’s estate, since the subject assets belong to the Deceased, rather than Auntie.  However, the fact is that, according to the Audio Recordings, the Deceased admitted that he had named the defendant as the sole beneficiary of the September 2016 Will because he had been asked by Auntie to do so[33]. The defendant’s submission is therefore rejected.

114.  As far as sub-paragraph (2) above is concerned, it was just a reminder made by the plaintiff to the Deceased.  It is not about the defendant’s character.

115.  In relation to sub-paragraph (3), the defendant’s counsel submitted that it is false that there was an operative injunction at the material time.  I agree that there was a misunderstanding on the part of the plaintiff about this.  However, I find that he honestly believed that there was indeed such an injunction at the time, because, as aforesaid, he had been advised by Mr Leung on this and there is no reason why he should query Mr Leung’s advice.

116.  Another 5 out of the 7 statements relied on by the defendant in support of the 2^nd Representations are also cited under this head.  I do not think those statements add anything to the effect of the statements quoted above. 

E4.9  The 7^th Representations

117.  Lastly, the defendant relied on the plaintiff’s statement “不過佢都應 ... 佢都係幫住個女人喎，到時可能鬧你個喎”.

118.  This part of the defendant’s case is, with respect, totally without merit:

(1)     If anything, this is directed at the Elder Son who is not even a party herein[34]. It is not up to the defendant to complain on his behalf;

(2)     The defendant has simply failed to prove that the plaintiff made the statement with the specific purpose of inducing the Deceased to make a new will in which the Elder Son would not be named as a beneficiary.  In fact, it is clear that the plaintiff had suggested that both he and the Elder Son should be named as beneficiaries under the December 2016 Will, subject to the Elder Son’s willingness to provide his HKID card numbers;

(3)     Neither would I accept that this single statement would have the effect of inducing the Deceased to make the December 2016 Will.  To the contrary, the Audio Recordings show that the Deceased was still minded to name the Elder Son as one of the beneficiaries if the latter was willing to provide his HKID card numbers.

E5.     Knowledge and approval

E5.1  The legal principles

119.  Legal principles relating to knowledge and approval have also been considered in Yip Sau Ching (supra) as follows:

“115. In Gill v Woodall & Ors [2011] Ch 380 (CA), Lord Neuberger held that:

‘14.    Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’: see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist.  As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.

15.     In Fulton v Andrew(1875) LR 7 HL 448, 469, Lord Hatherley said that:

‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it…those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator…’

This view was effectively repeated and followed by Hill J in Gregson v Taylor[1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris, decd[1971] P 62, 77F – 78B.  Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence’. This approach was adopted in this court in Fuller v Strum[2002] 1 WLR 1097, para 33 and in Perrins v Holland[2011] Ch 270, para 28.

16.     There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.

17.     Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time. As Scarman J put it graphically in In the Estate of Fuld, decd (No 3) [1968] P 675, 714E: ‘When all is dark, it is dangerous for a court to claim that it can see the light.’ That observation applies with almost equal force when all is murky and uncertain.”

116.     In Nina Kung v Wong Din Shin (supra), Ribeiro PJ also explained that:

‘206. […] the person propounding the will has the burden of proving due execution, testamentary capacity and the testator’s knowledge and approval of the will’s contents. It is, and was at the time Barry v Butlin (1838) 2 Moo PC 480 was decided, well established that proof of the first two conditions generally meant that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof. Thus, in Cleare & Another v Cleare (1865–1869) LR 1 PD 655, Lord Penzance stated:

‘That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by everyone who propounds it as a will. This burthen is satisfied, prima facie, in the case of a competent testator by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.’ (at p.657)

207.   This was also Parke B’s starting-point in Barry v Butlin (1838) 2 Moo PC 480:

‘In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed …’ (at p.484)’ ”

120.  In the present case, I should also refer to [208] of Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, in which Ribeiro PJ had the following to say:

“The particular circumstance introduced in Barry v Butlin involved the fact that ‘a party writes or prepares a Will, under which he takes a benefit’. The second rule states that such circumstance ought generally to excite the suspicion of the court, so that knowledge and approval is no longer presumed. Instead, the court demands affirmative evidence which it subjects to a ‘vigilant and jealous’ examination, refusing to pronounce in favour of the will unless satisfied that it expresses the true will of the deceased. That this is the effect of the second rule had been made clear by Parke B in Baker v Batt (1838) 2 Moo PC 319, a few months before his Lordship delivered judgment in Barry v Butlin:

‘There is also another principle upon which the Court below has acted, and which has long prevailed in the Ecclesiastical Courts, which is this, -- that if the person benefitted by a Will, himself writes or procures it to be written, the Will is not void, as it would have been by the Civil Law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the Testator.’ (at 321)”

(emphasis added)

121.  As far as burden of proof is concerned, it is trite that 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: Nina Kung v Wang Din Shin (supra), at [176].

E5.2  Discussion

122.  In the present case:

(1)     it is undisputed that the December 2016 Will was duly and properly executed by the Deceased; and

(2)     I have no hesitation to find that Ms Lee has read the December 2016 Will over to the Deceased before he executed the same.

123.  In these circumstances, there is a grave and strong presumption of knowledge and approval which can be rebutted only by the clearest evidence.

124.  The defendant submitted that the second rule in Barry v Butlin applies herein because:

(1)     It was the plaintiff who:

(a)     first contacted Mr Leung to prepare for the December 2016 Will;

(b)     gave at least the first round of instructions to Mr Leung for the purpose of drafting the December 2016 Will; and

(c)     paid for the legal fees of the December 2016 Will.

(2)     The plaintiff is the sole beneficiary under the December 2016 Will.

125.  On my part, I do not accept that the second rule in Barry v Butlinis engaged herein.  This is because, although it was indeed the plaintiff who first contacted Mr Leung for the preparation of the December 2016 Will, Mr Leung has subsequently taken instructions directly from the Deceased on the content of the December 2016 Will[35]. It should also be noted that Mr Leung was someone whom the Deceased had known for a long time.  In the circumstances, I do not agree that the plaintiff should be taken to be the person who “writes or prepares” the December 2016 Will.

126.  For the sake of completeness, I should mention that I reject the defendant’s argument that the Audio Recordings show that the plaintiff told the Deceased that he would go up to the solicitors’ firm and have the will prepared by saying that “我遲啲會揾一日去上律師樓叫佢寫定既”[36].  Having considered the conversation between the plaintiff and the Deceased at the material time in its entirety, I am of the view that it is more likely than not that the plaintiff was talking about the transfer of 2 pieces of land (the Lot 2164 Property and the Lot 2207 Property) (i.e. the subject matters of the December 2016 Deed of Gift) rather than the new will.  This is also more consistent with the finding that Mr Leung had taken instructions from the Deceased directly on the drafting of the December 2016 Will.

127.  In any event, even if the said rule is engaged, I would come to the same conclusion that the Deceased’s knowledge and approval of the December 2016 Will is proved.

128.  In this regard, the defendant has raised 7 matters which she submitted that the Court should take into account.

129.  Firstly, it was said that the plaintiff was the controlling and driving force behind the instructions given for the drafting of the December 2016 Will which was going to replace the previous will in respect of which he felt unreasonable. 

130.  I do not think the plaintiff can be fairly described as “the controlling and driving force” by merely making the initial contact with Mr Leung.  In any event, the force of this factor has been largely if not completely weakened by the fact that the Deceased has subsequently given instructions to Mr Leung directly for the drafting of the December 2016 Will.

131.  Secondly, it was submitted that it was the plaintiff who provided all the instructions of the December 2016 Will to Mr Leung.  I have already dealt with this before.  I do not accept this allegation of fact as suggested by the defendant’s counsel.

132.  Thirdly, the defendant argued that Ms Lee did not have any basis to verify Mr Leung’s instructions taken because Mr Leung did not pass to her any written record of the instructions obtained from the Deceased.

133.  I do not think it matters whether any such written record of instructions was in existence at the material time.  The most important matter is that Ms Lee did, as I have found, explain to the Deceased the content and the effect of the December 2016 Will.  It should also be borne in mind that the said will is straight forward – the plaintiff was named as the sole beneficiary of the entirety of the Deceased’s estate.  

134.  Fourthly, the defendant’s counsel highlighted the fact that the Deceased was not provided with a copy of the draft December 2016 Will prior to the meeting on 5 December 2016, and as a result, he did not have the opportunity to understand and approve of the contents of the new will beforehand.

135.  I do not think this matters in the circumstances of the present case, because the December 2016 Will is very simple.  The explanation given on 5 December 2016 by Ms Lee and Mr Leung is enough to ensure that the Deceased understood the effect of the December 2016 Will.

136.  Fifthly, the defendant’s counsel, on the basis of Ms Lee’s evidence that the Deceased said that he had made sufficient provision for the defendant and believed that she would be self-sufficient, argued that this could not reflect the reality because her monthly income as a hospital cleaning lady at the material time was only $5,000 per month which could hardly be said to be self-sufficient. 

137.  This submission is not understood, for there is no evidence that the defendant would not be self-sufficient.

138.  In any event, it should be noted that the evidence referred to by the defendant’s counsel was not the full answer given by the Deceased according to Ms Lee who told the Court in her oral evidence that she had in fact warned the Deceased that if he did not leave anything to the defendant, the defendant might sue his descendants, and that the Deceased had reassured Ms Lee that he had already given something to the defendant.

139.  Sixthly, it was submitted for the defendant that there is no good reason why the Deceased intended to cut the defendant (his lawful wife) out of his residuary estate when they continued to enjoy close relationship.  It was also pointed out that the complete disinheritance of the defendant represents a total reversal of the September 2016 Will in about 2.5 months, when nothing of materiality happened during that period of time.

140.  As far as the alleged close relationship between the defendant and the Deceased is concerned, I have already explained in Section E3 above as to why I reject such an assertion.

141.  In relation to the second point raised by the defendant, I have also explained in [85] above that the Deceased had apparently reconsidered the distribution of his estate after the execution of the September 2016 Will.   In my view, there is nothing in the said second point made by the defendant.

142.  Seventhly, the defendant argued that the December 2016 Will does not reflect the Deceased’s intention to leave his half interest in both the Lot 27A Property and the No.116 Property (i.e. the Elder Son’s home and a “bicycle room”) to the Elder Son, nor his intention to leave his half interest in the No.136 Property (i.e. Uncle Sum’s home) to Uncle Sum.

143.  These submissions are without merit:

(1)     In support of the argument on the Lot 27A Property and the No.116 Property, Mr To for the defendant referred this Court to the transcripts at C/315[37] (counter 145) to C/316 (counter 180).  Those conversations refer to “兩達地”.  However, contrary to Mr To’s suggestion, this description of “兩達地” in fact relates to 2 other pieces of land, namely, the Lot 2164 Property and the Lot 2207 Property, which have been rented out.  This can be seen from C/314 counter 122.  Those lands are in fact shops (“嗰啲舖”) which are not subject to the injunction obtained by the Deceased’s ex-wife (according to the plaintiff, those lands together with the defendant’s Stone House are the only properties owned by the Deceased which are covered by the said injunction).  In other words, the defendant’s argument is misconceived.[38]

(2)     Even if we put aside the defendant’s misunderstanding as to which pieces of lands that the plaintiff and the Deceased were discussing at the material time for the time being, I am of the view that, from the Audio Recordings, the Deceased had clearly indicated that if the Elder Son would accede to his request of supplying his HKID card numbers, the Deceased would add him to be a beneficiary of the December 2016 Will; however, if the Elder Son refused to do so, he would be treated as having abandoned his right[39]. Hence, the absence of the Elder Son’s name in the December 2016 Will does not assist the defendant’s case.

(3)     The so-called “Deceased’s intention” was in fact a suggestion made at the material time by the plaintiff, who insisted that even if the Deceased left the Elder Son out completely from the December 2016 Will, he (the plaintiff) would still be willing to transfer half of the Deceased’s interest in the Lot 2164 Property and the Lot 2207 Property respectively to the Elder Son if he asked for them[40].

(4)     Even if the said plaintiff’s intention could be taken to be the Deceased’s intention, the Deceased was apparently content with the idea of passing all his properties to the plaintiff first and let the plaintiff deal with them in future.  This is consistent with the content of the December 2016 Will.

(5)     In support of the argument on the No.136 Property (i.e. Uncle Sum’s home), the defendant’s counsel referred this Court to the conversations between the plaintiff and the Deceased on 12 November 2016 starting at 7pm[41]. However, according to the conversations between them which took place on 20 November 2016 starting at 1:31pm, the Deceased had agreed with the plaintiff that the latter should be named as the beneficiary of the said piece of land first[42]. Although it appears from the Audio Recordings that the Deceased had subsequently changed his mind again and considered that the December 2016 Will should not deal with the land on which Uncle Sum’s home was situated (because he somehow took the view (according to what he had been told by solicitor(s)) at the time that it was “useless” (“冇用”) to include the said piece of land in his new will), that at least shows that the conversation relied on by the defendant was not the final decision of the Deceased.  It would therefore be futile to compare the content of the December 2016 Will with the conversation which took place on 12 November 2016.

(6)     Moreover, according to the plaintiff’s evidence (which I accept), the content of the December 2016 Will was finalised after the Deceased had talked to Mr Leung directly.  That conversation apparently would not be covered by the Audio Recordings. 

(7)     It was further argued by the defendant that it is inherently improbable that the Deceased would insist upon leaving Uncle Sum’s residence to the plaintiff and expected that Uncle Sum and the plaintiff would exchange their land in the future, because Uncle Sum would not agree to pay stamp duty.  I reject this argument.  One must not lose sight of the fact that the Deceased and Uncle Sum were at the material time tenants in common (50% each) of the No.98 Property (the plaintiff’s home), the No.116 Property (the Elder Son’s home) and the No.136 Property (Uncle Sum’s home).  If the Deceased named Uncle Sum as the beneficiary of the Deceased’s interest in the No.136 Property, there is an uncertainty as to whether Uncle Sum would do the same in relation to the No.98 Property and the No.116 Property.  Viewed in this light, I do not think it is inherently improbable that the Deceased would eventually have decided that the safest way to handle the matter was to name the plaintiff as the sole beneficiary first and let him deal with the matter with Uncle Sum subsequently.  In this regard, it should be noted that it is undisputed that Uncle Sum and the plaintiff all along had very good relationship.

144.  All in all, it is my conclusion that the presumption of knowledge and approval on the part of the Deceased of the December 2016 Will is not rebutted.

145.  Even if the Court is required to be vigilant and jealous, I am still satisfied that there is clear and satisfactory proof that the December 2016 Will contains the real intention of the Deceased.

146.  Hence, the plaintiff has successfully proved the validity of the December 2016 Will.

E6.     Undue influence

147.  In light of the conclusion above, there is no need to consider the plaintiff’s defence of undue influence in relation to the September 2016 Will.  However, I would deal with it in this Judgment as it may have an impact on costs.

E6.1  The legal principles

148.  For the legal principles concerning undue influence, I would gratefully adopt the summary of legal principles set out by Madam Recorder Rachel Lam SC in Wong Tug Wai v Wong Tung Po [2023] HKCFI 1240 as follows:

“25. Undue influence in the law of probate is different from undue influence as understood in equity. It is more stringent in the sense that actual undue influence is required to be proved, and undue influence is not presumed in making a testamentary gift: Hubbard v Scott [2012] WTLR 29 at [2].

26. In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at [83], Poon J (as the Chief Judge then was) adopted the summary of undue influence in a probate litigation in Re Edwards [2007] WTLR 1387 at [47]:

‘… The approach that I should adopt may be summarised as follows:

(i) In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact.

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in providing undue influence as vitiating a testamentary disposition.

(iv) In the context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’s sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.

…

(ix)     The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his disposition, the testator has acted as a free agent.”

27.     As to the nature of the influence exerted that constitutes undue influence, Sir J.P. Wilde in Hall v Hall (1868) L.R. 1 P. & D. 481 at 482 held:

‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.’

28.     Similarly, in Wingrove v Wingrove (1885) 11 P.D. 81 at 82-83, it was held:

‘To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything.  This would equally be coercion, though without actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, ‘this is not my wish, but I must do it’ …

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator.  It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

29.     ‘Victimisation’, ‘domination’ and ‘coercion’ are the words used in the authorities: Hubbard v Scott [2012] WTLR 29 at [46].  As Lord Haldane said in Craig v Lamoureux [1920] 1 AC 349 at [357], citing Boyse v Rossborough (1856) 6 HLC 2 at [52]:

‘In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.’

30.     As to the proof of actual undue influence, In Re Good (deceased), Carepeto v Good [2002] WTLR 801 at [126], it is held that in the absence of any direct evidence, coercion may be found by the court drawing inferences from the general circumstances.”

E6.2  Discussion

149.  Having considered the Audio Recordings, I find that the Deceased only agreed to execute the September 2016 Will by reason of undue influence by Auntie.  This finding is plainly supported by what the Deceased himself told the plaintiff as recorded by the Audio Recordings:

(1)      

Plaintiff: […] 咁點解自己屋企要有一半俾人哋攞左呀? 點解你嗰時咁做你唔諗清楚呀?

Deceased:     咪嗰個 xx 大姑囉。乜x嘢都嗌俾佢 […][43]

(2)      

Plaintiff: […] 嗰個大姑係咪人黎㗎? 佢叫你寫平安紙俾曬佢?

Deceased: […] 個大姑乜x嘢都幫埋佢㗎啦。

Plaintiff:     佢真係叫你咁做㗎? 係咪呀? 佢嗰時叫個律師嚟，叫你寫曬平安紙之後，叫你將間屋轉俾佢。

Deceased:     佢搵埋律師俾佢呀。

[…]

Plaintiff:     大姑咁嘅嘢都做得出? […]

Deceased:     […] 嗰時日日都鬧，俾隔離床嗰個…嗰個…嗰個10…10號床嗰個女人聽埋，日日晏晝嚟到就鬧xx我。

Plaintiff:     咁嗰個大姑驚佢無地方住啫。

Deceased:     又話我無錢，無錢俾佢，又成日鬧佢。係人都走喎，咩嘢物物喎。[44]

150.  The defendant counter-argued that the plaintiff’s case on undue influence is very tenuous.

151.  Firstly, the defendant relied on the evidence of Uncle Sum who confirmed in court that the Deceased had never told him about being compelled to sign the September 2016 Will.  In my view, the fact that the Deceased has never told Uncle Sum about this does not mean that the Deceased was lying when he made the statements as quoted above.  In fact, there is no reason why the Deceased had to make this up.

152.  Secondly, it was submitted that it is factually improbable that Auntie visited the Deceased on a daily basis at the material time because she had to work.  This, with respect, is a desperate argument, for the Deceased’s statement should not be interpreted literally.  The most important point is that it was the Deceased’s own statement that he had agreed to execute the September 2016 Will because of Auntie’s pressure.

153.  Thirdly, it was submitted that what Auntie did, taking it to the highest, was just persuasion.  With respect, I disagree.  There is apparently a difference between persuasion and undue influence.  In my view, while it can be said that what the plaintiff had done was persuasion (by reasoning with the Deceased that it was, among other things, unreasonable to leave everything, including the plaintiff’s home, to the defendant), the Auntie’s conduct had apparently crossed the line if the Deceased’s description thereof is accepted (which I do).  In my view, the Deceased was not a free agent at the time when he executed the September 2016 Will.  He was overborne and overpowered by Auntie’s frequent scolding, to the extent that he had yielded to Auntie’s instruction to leave his entire estate to the defendant.  This is particularly apparent in the circumstances of the present case, where the Deceased was, as shown by the Audio Recordings, still having a strong feeling about the defendant’s extra-marital affairs with Mr Cham.  Hence, in my view, the making of the September 2016 Will is inconsistent with it not having been obtained by undue influence.

154.  Fourthly, the defendant’s counsel submitted that, according to the defendant’s evidence, the Deceased had voluntarily told her and the Elder Son in a Chinese restaurant in August/September 2016 that he intended to leave his entire estate to her.  It was further emphasized by counsel that this piece of evidence was not challenged during cross-examination.

155.  It is trite that even if a witness has not been cross-examined on a certain matter, the Court is not obliged to accept the witness’ evidence on such a matter.  The Court is always entitled to look at the whole circumstances and decide whether the witness’ evidence should be accepted.  In the present case, as explained above, generally speaking, I do not accept the defendant’s evidence.  As far as this particular piece of evidence is concerned, this is contradictory to her other evidence (see [47(6)] above) and therefore there is ample reason to have it rejected. 

156.  The defendant’s counsel further argued that the plaintiff should not be allowed to run the undue influence defence because Auntie had not been cross-examined on the issue of undue influence at all, and neither was the plaintiff’s case of undue influence put to Auntie nor Mr Wong (the solicitor who was engaged to prepare the September 2016 Will).

157.  With greatest respect, this submission is not understood, for the plaintiff’s counsel did cross-examine Auntie on whether she had scolded the Deceased and told him to leave everything to the defendant.  In my view, Auntie has been given a fair opportunity to answer the plaintiff’s allegations.

158.  As far as Mr Wong is concerned, I do not think there is any need to cross-examine him on this issue.

159.  To conclude, it is my finding that the plaintiff has successfully proved his case of undue influence.  Hence, even if the December 2016 Will is invalid, the September 2016 Will should not be pronounced.

F.      DISPOSITION

160.  I therefore order that:

(1)     The Will dated 5 December 2016 be pronounced in solemn form;

(2)     The defendant’s counterclaim be dismissed.

G.     COSTS

161.  I make a costs order nisi that the defendant do pay the plaintiff’s costs of the action (including his costs of the counterclaim and all costs reserved), to be taxed if not agreed.

162.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.