NG YUK TIN v. FAN ON NA

HCAP 16/2016

[2023] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 16 OF 2016

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J U D G M E N T

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A.   INTRODUCTION

1.  These proceedings concern the estate (“the Estate”) of Ng Kin Man (吳建文) (“the Deceased”), who passed away in Nanjing (南京) in China on 23 August 2014. 

2.  A homemade will signed by the Deceased on 18 June 2014 (“the 2014 Will”) has been propounded by the defendant.  The plaintiff, who was a natural son of the Deceased, disputes the validity of the 2014 Will. 

B.   BACKGROUND FACTS

3.  The matters stated in this section are not in dispute and I find them as facts.

4.  The Deceased was born in Hefei (合肥) in about 1924.[1]

5.  The Deceased received his tertiary education in Chongqing (重慶) during the Sino-Japanese War.

6.  In about 1945, the Deceased married Zhang Shuqian (章淑倩) (“the Wife”).  They had a daughter, Wu Yuping (吳育坪), born in 1946, and two sons, the plaintiff and Wu Yujin (吳育津), born in 1948 and 1950 respectively.

7.  The Deceased moved to Hong Kong alone, without the Wife and their children, in about 1979 or 1980 and became a successful businessman.  The Wife stayed in Nanjing but came to Hong Kong to stay with the Deceased from time to time.  The Deceased also visited Nanjing regularly.

8.  In about 2002, the Deceased hired the defendant, who had just completed her secondary school education, as his personal assistant, taking care of both his business and personal affairs until his death.  In effect, the defendant became the Deceased’s primary carer in all aspects of his life.  Initially, she would stay in the Deceased’s flat from time to time to take care of him, and when the Deceased purchased a new flat at Manhattan Hill (“the Flat”) in 2007, the defendant moved into the Flat at the request of the Deceased so as to look after him better.  Around the time the defendant got married in 2011 and was pregnant with her first child, and with the expectation that Wu Yujin would come to live in Hong Kong with the Deceased, the Deceased bought another flat in Manhattan Hill (“Flat 10D”) for the defendant to live in.  Her two children (born in 2011 and 2012 respectively) resided with the defendant at Flat 10D, while the defendant’s husband, who normally resided in the Mainland, would also stay at Flat 10D when he came to Hong Kong.  After about a year and a half, the defendant and her family moved back to the Flat, after it was clear that Wu Yujin would not be moving to Hong Kong.

9.  After the passing of the Deceased, on the basis that the Deceased died intestate, the Wife, who as the widow had priority to be granted letters of administration of the Estate, renounced her right thereto.  The plaintiff then, on 26 March 2015, with the consent of the Wife and the other two children, applied to the Probate Registry for the grant of letters of administration of the Estate.

10.  Thereupon, on about 11 May 2015, the defendant entered a caveat against the grant of administration of the Estate.  In her Appearance to Warning dated 17 July 2015, the defendant stated that she, together with her two children, were entitled to reasonable financial provision under the Inheritance (Provision for Family and Dependants) Ordinance[2] from the Estate.  There was no mention of any will made by the Deceased.

11.  By a consent order made by Master Chow dated 25 April 2016, the caveat was withdrawn.

12.  Then, on 3 May 2016, the defendant entered another caveat. This time, in her Appearance to Warning dated 21 June 2016, the defendant alleged that the Deceased had made a will, i.e. the 2014 Will. 

13.  The two caveats were filed on behalf of the defendant by a solicitor, Lee Tit Fai (李鐵輝) (also known as Gordon Lee, “Mr Lee”), who had been acting for the Deceased in various matters during his lifetime.  Mr Lee also represented the defendant when this action was commenced by the plaintiff, but withdrew after complaints of a potential conflict of interests were made by the plaintiff.  As will be seen, Mr Lee gives evidence at the trial and his evidence is of importance in this matter.

14.  The 2014 Will propounded by the defendant is in two parts.  The first part, consisting of two unnumbered pages, is titled “平安紙” (i.e. “Will”). The second part, consisting of five pages (with the first four pages numbered 1 to 4 and the last page stated as “終頁” (i.e. “Last Page”), is titled “最後真言” (i.e. “Last True Words”).  The entire 2014 Will was handwritten by the defendant in Chinese.[3]  For convenience only, without prejudice to the dispute on the legal effect thereof, I refer to the entire document in the two parts of seven pages as “the 2014 Will”,  although strictly only the first part, if valid at all, operates as a will.  Specifically, however, when I discuss the effect or validity of the 2014 Will, it is the effect or validity of the first part thereof that is in issue and the discussion is to be understood accordingly.

15.  In the first part of the 2014 Will:

(1)  Wu Yujin and the defendant are appointed joint executors.  The defendant is described as “我與妻子共同認同之救命人養孫女范安娜”.[4]

(2)  The following distributions, after deducting expenses, are made:

(a)  HK$500,000 to the Wife;

(b)  HK$200,000 to Wang Xiaoxun (王小蕈) (the daughter of Wu Yuping);

(c)  HK$1 each to Wu Yuping, the plaintiff and Wu Peng (吳鵬) (the son of Wu Yujin);

(d)  For three named real properties in Hong Kong, including the Flat, they are to be given to the following persons as joint tenants:

(i)    Wu Yujin;

(ii)   Bo Fangrong (柏方容) (the wife of the plaintiff);

(iii)  Wu Bochun (吳伯淳) (the son of the plaintiff); and

(iv)  The defendant.

(e)  The disposition of the three real properties is to be subject to the following conditions:

(i)    They cannot be sold within 20 years of the death of the Deceased;

(ii)   The respective spouses of the four beneficiaries cannot interfere with the ownership thereof;

(iii)  The three properties can only be leased out during the 20-year period, and cannot be lived in by any of the four beneficiaries;

(iv)  The rental income from the three properties is to be shared between Wu Yujin (as to 55%), Bo Fangrong (as to 35%) and Wu Bochun (as to 10%).

(f)   The residue is to be given to Wu Yujin.

16.  The signature of the Deceased appears at the top righthand corner of the first page of the first part of the 2014 Will, with the date “2014.6.18” written underneath the signature.  Another signature of the Deceased appears at the end of the second part of the 2014 Will, with the date “1924.6.18” written next to it.  The plaintiff does not now dispute these to be the signature of the Deceased, after a joint expert opines that they are the Deceased’s signature.  Nor does the plaintiff now suggest that the Deceased did not have the mental capacity to make a will at the time he signed the 2014 Will. In cross-examination, the plaintiff accepts that the Deceased had a clear mind up until his death, i.e. he should know what he was doing.[5]

17.  There is no attestation clause or any signature of any witnesses on the 2014 Will.

18.  In the 最後真言, the Deceased explained the reasons for his intended distributions of his assets to various beneficiaries in the manners stated in the first part of the 2014 Will.  In relation to the defendant, in a passage written across page 4 and the last page, he said:

「范安娜（養孫女）虽非嫡亲，卻任我秘书兼全职医護，為人善良。於2009年4月26日在南京大廠鎮住所由夫人宣稱為養孫女。（她在職期間盡心為公司服務，在前幾年為公司操作樓宇交易中，盡力貢獻，獲取收益近200餘萬元）。且在我本人於2009年 12月間患重症，經其發揮外事智能，及時呼吁京城副國級（盛）指示江苏住院供血800cc 救命回生。得到我妻 ²立了大功² ，²救了人命²，应予之高度讚賞及獎賞，并可托其為本紙執行人之一。」[6]

19.  The Deceased also set out his views on members of his own family in the 最後真言.  To say that the Deceased was gravely disappointed in the plaintiff and Wu Yuping (as reflected in the legacies of HK$1 to each of them) is an understatement, and this is totally consistent with all earlier testamentary scripts produced before me.

20.  I describe the 2014 Will according to the contents thereof, and the descriptions are subject and without prejudice to the challenge to the validity of the 2014 Will by the plaintiff.

21.  I note that according to the terms of the 2014 Will, the defendant derives no immediate benefit or during the 20 years after the death of the Deceased.  The only gift to her is a quarter share in the three real properties (which of course would increase in percentage if one or more of the other joint tenants pass away before her) which she cannot sell, and from which she will receive no income, for 20 years.  She will only benefit to any extent if she is still alive 20 years after the death of the Deceased.  I note that the defendant was born in 1984 so by the time that the Deceased had passed away for 20 years (i.e. 2034), she will be 50 years old if still alive. That she will still be alive by then is probably more likely than not, and more likely than Wu Yujin (who will be 84 if still alive), although even for Wu Yujin, given the modern day life expectancy, that he will still be alive by then is more than reasonably probable.  I have no evidence of the age of the other two intended joint tenants of the properties (if the 2014 Will is valid).

C.    THE ISSUES

22.  The following are the agreed issues between the parties:

(1)  Whether the 2014 Will complies with the requirements under section 5(1) or section 5(2) of the Wills Ordinance[7] and constitutes a valid will of the Deceased.

(2)  Whether the 2014 Will is authentic and made with the Deceased’s knowledge and approval of its contents.

(3)  Whether the Deceased made the 2014 Will under the undue influence of the defendant.

(4)  In light of the answers to paragraphs (1) to (3) above, whether:

(a)  the 2014 Will is valid, and that it should be pronounced in solemn form (prayers (a) and (b) of the Amended Defence and Counterclaim).

(b)  the 2014 Will is invalid, and that there should be a decree propounding against the validity of the 2014 Will (prayer (1) of the Amended Statement of Claim).

(5)  If the Deceased died intestate, whether the plaintiff is entitled to an order that the letters of administration of the Estate be granted to him (if so entitled) (prayer (2) of the Amended Statement of Claim).

(6)  What other relief, if any, should be granted to the plaintiff / the defendant.

D.    THE TESTAMENTARY SCRIPTS

23.  A number of testamentary scripts of the Deceased, all in Chinese, are produced by the defendant, which I summarise in Annex III hereto.[8] The 平安紙 and the最後真言 parts of the 2014 Will are listed as Items 11 and 12.

24.  I make the following observations on the testamentary scripts as shown by their contents:

(1)  From the first one, i.e. Item 1, said to be made in 2009, which the plaintiff does not dispute was in the Deceased’s own handwriting, the defendant was already being described as an adopted granddaughter (養孫女) of the Deceased, and she was to be given a share of the real properties of the Deceased, sometimes as a joint tenant together with others, and sometimes (as in Items 5 and 7) she was to be given one of the properties (i.e. the Flat) absolutely on her own immediately upon the death of the Deceased.  Such a description of the defendant (when she was mentioned) and the bequeath of a share of the real properties of the Deceased to her as a joint tenant or on her own existed in all subsequent testamentary scripts.  In some of the scripts, including the 2014 Will, the defendant was additionally described as the life-saver (救命人) of the Deceased, as recognised by both the Deceased and the Wife.

(2)  On the other hand, under Item 1, each of the plaintiff and Wu Yuping, i.e. two of the Deceased’s three natural children, was to be given $1,[9] which also remained the same throughout.

(3)  In the 鄭重声明, i.e. Item 2, the Deceased set out his views on his family members, which were basically the same as those set out in subsequent documents of a similar nature, including the最後真言of the 2014 Will.  In the附加聲明, i.e. Item 6, the Deceased set out his views on the defendant, which were basically the same as those set out in the最後真言of the 2014 Will.  As stated, she was consistently being described as the adopted granddaughter and life-saver of the Deceased.  Her own son, Fang Ling Hung (方令雄), was described in Items 5 and 7 as the beloved adopted great-grandson of the Deceased (至愛養曾孫).

(4)  The terms of Item 7 are much more beneficial to the defendant than those of the 2014 Will, in that she was to be given one of the three real properties of the Deceased absolutely and immediately upon his death (instead of being one of four joint tenants of the properties with no immediate benefits for 20 years after the Deceased’s death: see [21] above).  Ling Hung was also to get 33% of the residuary estate under Item 7, whereas he gets nothing under the 2014 Will.[10]

25.  Rather than making any challenge to or casting any doubts on Items 1, 2, 3 and 7, the plaintiff argues that those Items, which were drafted in forms in careful and meticulous compliance with the formal requirements under section 5(1) of the Wills Ordinance, after the Deceased had studied such requirements diligently, and had taken legal advice on the law of wills, are in stark contrast to the 2014 Will, which does not follow such requirements.  In particular, Mr James Man[11] points to following aspects on which the 2014 Will differs from the earlier drafts:

(1)  The locations of the signatures of the Deceased, with no initials on the second (being the last) page of the first part of the 2014 Will.

(2)  There was no space reserved for the signature of any witness;

(3)  There was no attestation clause.

Mr Man also refers to the fact that the Deceased dated the 最後真言as 18 June 1924 rather than 2014, and that the two pages of the first part of the 2014 Will were not numbered.

26.  I shall deal with this argument later but I note that the plaintiff does not therefore suggest that Items 1, 2, 3 and 7 were prepared other than with the Deceased’s involvement, knowledge of their contents and voluntary consent.  Indeed, it is the plaintiff’s own evidence that a copy of Item 2 was found by him in a briefcase of the Deceased sometime in 2016.  The point is not whether they had legal force as a will of the Deceased (no one suggests that they did), but, being documents prepared with the Deceased’s involvement, knowledge of their contents and voluntary consent, they represent the best evidence of what was in the Deceased’s mind as at the time of their making.  When I refer to the views of the Deceased as expressed in undisputed documents, I confine the reference to Items 1, 2, 3 and/or 7, which, inter alia, consistently described the defendant as a養孫女 and with substantial benefits being given to her, although in those documents the reference to her being a 救命人 did not appear.

E.    REQUIREMENTS FOR THE 2014 WILL TO BE VALID

27.  Section 5 of the Wills Ordinance provides as follows:

“(1) Subject to sections 6 and 23D, no will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;

(b) it appears that the testator intended by his signature to give effect to the will;

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

(d) each witness either—

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.

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

28.  There is no dispute that the 2014 Will does not satisfy the requirements of section 5(1) of the Wills Ordinance.  The question is whether it is nevertheless valid by reason of section 5(2).

29.  Mr Man submits that the burden is on the defendant, who is propounding the 2014 Will, to satisfy me beyond reasonable doubt that it embodies the testamentary intentions of the Deceased.  In this regard, the defendant has the burden, Mr Man submits, to prove the following beyond reasonable doubt:

(1)  The Deceased intended that the 2014 Will was to take effect immediately and finally upon execution, subject only to his death.

(2)  The Deceased knew and approved of the contents of the 2014 Will.

(3)  The 2014 Will was not procured by undue influence.

30.  Mr Man argues that there is at least a reasonable doubt in relation to those three matters:

(1)  On the question of immediacy and finality, he submits that the 2014 Will is only a draft will.  He submits that there is evidence from Wu Yujin that the Deceased told him sometime in May 2014 that he would wait for him to come back to Hong Kong in September 2014 before settling his will.  Further, on the defendant’s own case, in July 2014, the Deceased told Mr Lee that he would like to have the 2014 Will attested after he came back from Nanjing, and that it was only on 22 August 2014 that the Deceased obtained the consent of the Wife as to the testamentary arrangements under the 2014 Will.  Also, Mr Man submits, the Deceased studied and took advice on the detailed requirements of making a valid will in Hong Kong and intended to have his will properly executed.

(2)  As to whether the Deceased knew and approved of the contents of the 2014 Will at the time when it was executed, Mr Man points to what he says to be the peculiar form of the 2014 Will (see [25] above).  He also relies on the following matters:

(a)  The 2014 Will was in the handwriting of the defendant, who derives a direct financial benefit from it;

(b)  The 2014 Will was homemade;

(c)  There was no plausible reason for the Deceased to bequeath assets to the defendant, as he had been dissatisfied with her work performance and attitude since around late 2013;

(d)  The Deceased had not told the Wife or his children about the 2014 Will.

(3)  As for undue influence, apart from the matters stated above, Mr Man refers to the Deceased’s feeble physical condition and dependence on the defendant, his complaints to Wu Yujin that the defendant had repeatedly urged him to make a will, and the Deceased’s demeanour shortly after the 2014 Will was signed.

31.  Mr Man questions the case of the defendant on what happened on 18 June 2014, when the 2014 Will was drafted.  According to the defendant, the drafting started at about 10 am, when the Deceased asked the defendant to take pen and paper and wrote down what he was dictating to her.  While dictating, the Deceased was holding copies of Items 1 and 2 in his hand, and he was standing behind the defendant watching what she was writing down closely (until later when she asked him to sit down and not to stand behind her, as she felt pressurised by that).  He would sometimes show the defendant Item 1 or 2 and asked her to copy some passages.  During cross-examination, the defendant says that the Deceased might also be holding Item 9 as well.  After she finished writing of what is Item 10, the Deceased said that the lines were too dense, and asked her to write again in greater spacing, resulting in Item 12.  The whole process took about three to four hours.

32.  Mr Man points out that the 2014 Will was written out rather smoothly, with just very few minor corrections by correcting fluid. Further, Mr Man questions why, if the Deceased did ask the defendant to prepare Item 9 in May 2014, which is basically identical to the 2014 Will, why did he bother to ask the defendant to write out the 2014 Will barely a month later?

33.  Ms Frances Lok, for the defendant, submits that she, being the proponent of the 2014 Will, has the legal and persuasive burden of proving, on a balance of probabilities, that it is the will of the Deceased, in terms of due execution, testamentary capacity, and knowledge and approval of the contents.  She submits, however, that where a person challenging a will is alleging fraud or undue influence, he bears the legal or persuasive burden (and not just an evidential one), again on a balance of probabilities, citing Ribeiro PJ in Nina Kung v Wong Din Shin:[12]

“177. On the other hand, where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence: Boyse v Rossborough (1857) 6 HLC 2; Craig v Lamoureux [1920] AC 349 (PC). These pleas presuppose execution of the will by the testator. The allegation is that such execution was procured by acts of fraud or undue influence performed by others: Tyrrell v Painton & Another [1894] P 151 at p.157; Williams on Wills (8^th ed., 2002) §5.9.

178. The person propounding the will has no burden of disproving fraud or undue influence, although he is obviously likely in practice to adduce whatever evidence may be available to counter those allegations. Where those issues are raised (assuming that the court is satisfied as to due execution, testamentary capacity and knowledge and approval), the court asks itself at the end of the day whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence, as the case may be”.

34.  However, as Mr Man points out, section 5 of the Wills Ordinance considered by the Court of Final Appeal in Nina Kung was in materially different terms.  That version said:

“(1) Subject to subsection (2), no will shall be valid unless it is in writing and executed in accordance with the following rules:

Rule 1. It shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction.

Rule 2. Such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and each witness shall attest by his signature the signature of the testator, or of the person signing for him, in the presence of the testator, but no form of attestation shall be necessary.

......

(2) Any will of a Chinese testator written wholly or substantially in Chinese and signed by the testator shall be valid and duly executed although not executed in accordance with the rules set out in subsection (1)”.

35.  There was therefore no express reference in that version of section 5 regarding the Court having to be satisfied beyond reasonable doubt as to the testamentary intentions of the testator.  For an informal will, under the current section 5(2), the legal or persuasive burden to prove beyond reasonable doubt that the will embodies the testamentary intentions of the deceased is on the proponent of the will.  The question is therefore whether the proof of the testamentary intentions encompass a proof of an absence of undue influence, i.e., not only that the document embodies the testamentary intentions of the testator, but also that such intentions were freely and voluntarily formed by the testator.  While accepting that he has the evidential burden on this issue, Mr Man argues that once he discharges that burden, the legal burden is on the defendant to prove beyond reasonable doubt that there was no undue influence.  I agree with Mr Man on this because the party having the burden to prove that the testator knew and understood what he was doing ought to rule out the possibility of undue influence.[13]

36.  However, as stated by Bokhary and Chan PJJ in Real Estate Investments (NT) Ltd v Commissioner of Inland Revenue,[14] cases that have to be disposed of on the burden or onus of proof are rare and exceptional.  Their Lordships cited from Lord Reid in Dorman Long (Steel) Ltd v Bell:[15]

“It has often been said that after all the evidence had been led the initial onus of proof is rarely of importance”.

37.  As will be seen, this is not one of those rare and exceptional cases.  As analysed below, I am able to come to findings beyond reasonable doubt as to the testamentary intentions of the Deceased, including the question of undue influence, on the totality of evidence before me. 

F.  ANALYSIS OF EVIDENCE AND FURTHER FINDINGS OF FACT

F1.  The witnesses

38.  The plaintiff calls himself and Wu Yujin as witnesses.  For the defendant, apart from herself, she calls Mr Lee,[16] Ms Mau Kuai Tsz (繆桂梓) (the defendant’s mother), as well as two acquaintances of the Deceased, Ms Liu Hon Ying (廖漢英) and Mr Wan Qinglin (萬慶林).

39.  Before analysing the evidence (written and oral) of the witnesses (including the parties themselves) in detail, I shall set out my general impression of them. 

40.  I am not impressed by either the plaintiff or Wu Yujin. 

41.  The plaintiff is evasive and refuses to answer even the most straightforward questions, or acknowledges the obvious.  For example, he refuses to accept the views of the Deceased on the defendant and various members of the family, when it is obvious that those were the true, genuine and consistent views of his late father, set in documents over a number of years the authenticity, and the voluntariness of the Deceased in making them, is not disputed (see [24]-[26] above). 

42.  The same can be said of Wu Yujin.  Like the plaintiff, he refuses to accept the obviously close relationship between the Deceased and the defendant, and during his testimony he even likens the defendant to a foreign domestic helper who happens to live with the employer.  This is starkly contradicted by documents in the Deceased’s own undisputed handwriting. He comes across as intentionally and deliberately unco-operative.  For example, even for a simple question such as how old was he when he went to Australia in 1988, which is the first question for him in cross-examination, he refuses to answer directly.  Instead, he just gives his year of birth and asks Ms Lok to calculate for herself.  While his age at the time is not a matter of real significance whatsoever, such an attitude is hardly helpful to the Court, save to demonstrate the attitude of Wu Yujin as a witness, even for simple and apparently harmless questions.  He refuses to acknowledge the obvious such as photographs showing that the Deceased and the defendant (and sometimes the Wife as well) did have a happy and close relationship, much more so than a mere employer-employee relationship.  He even refuses to accept that the 2014 Will was signed by the Deceased.  Some of his answers, such as why he did not tell the plaintiff that the Deceased had, on his evidence, told him that he had been mistreated by the defendant, are simply incredible (see [76] below).  He also refuses to acknowledge that there are mistakes or errors in his statements when it is plainly so.  As an example, in his statement, he says that when in July 2014 the Deceased told him that he was going back to Nanjing, he tried to persuade him not to go, and told him that he should stay in Hong Kong.[17]  In his testimony, Wu Yujin says he talked to the Deceased about this only once, and he is certain that it was when the Deceased had gone back to Nanjing.  When it is put to him that his statement, which suggests clearly that the conversation took place before the Deceased went back (as Wu Yujin says he was asking the Deceased to stay in Hong Kong and not to go), must therefore be wrong, he first steadfastly insists that it is true, and then attempts, totally unconvincingly, to explain that there should be proper punctuation marks which are missing.  While I can certainly accept that a witness may not be able to remember clearly all the details of a matter years ago which at the time was totally insignificant to him, to refuse to accept frankly a clear (and probably insignificant) mistake, certainly does not give one confidence about the credibility of the witness.

43.  The aforesaid unsatisfactory aspects of the evidence of the plaintiff and Wu Yujin cannot be explained by reason of the fact they happened some years ago.

44.  As a general point, Mr Man says that Wu Yujin stands to benefit more from the Estate if the 2014 Will is upheld, because if the Deceased died intestate, he would only get 1/6 of the assets, which is less than what he is getting under the 2014 Will.  There is therefore no reason for Wu Yujin to seek to support the plaintiff other than to tell the truth.  But this rather overlooks the fact that what Wu Yujin will get under the intestacy is an immediate 1/6^th share of all, including an immediate share of the capital value of the three real properties, whereas under the 2014 Will he will not get his (1/4) share of the capital value of the three real properties at all if he does not survive until August 2034 (although, as I said above, that he will still be alive by then is perhaps more than reasonably probable).  I acknowledge that Wu Yujin will also get 55% of the rental income, and the residue, in the meantime.  There are therefore benefits to Wu Yujin on either case, and thus I do not think there is sufficient basis for me to draw the inference on the credibility of Wu Yujin as suggested.  In any event, as I explain below, any view or conclusion on the general credibility of a witness is no substitute for a consideration of the inherent probability of a witness’ evidence.  

45.  On the other hand, the defendant comes across as a witness who impresses me as doing her best to give truthful evidence.  I have not overlooked the various inconsistencies between the written and oral evidence of the defendant or unsatisfactory aspects thereof, for example, regarding whether the defendant had a hard copy of item 6 herself, or how the copy she now produces was found, or why did the defendant not dealt with the circumstances of the drafting of items 4 and 9 in her witness statements, made after a copy of item 9 had been disclosed by her in July 2018 (which means that item 9 was not a recent fabrication), or the other examples referred to in the closing submissions of Mr Man.  The evidence of the defendant is clearly far from perfect, but, as stated by DHCJ ST Poon (as he then was) in Re Estate of Ho Chi Yin,[18]the evidence of the defendant does not have to be so.  On many occasions, the discrepancies between her written and oral evidence appears to me to be a lack of clarity in her recollection of events happening some years ago.  In any event, I am not making, and will not make, any findings based on the general credibility of the defendant alone, but will critically analyse the evidence on each issue on which I have to resolve.

46.  Mr Lee is an officer of the Court and has no personal stake or interest in the outcome of this action.  He gives his evidence in a calm and measured manner and I am also impressed by him as a witness.

47.  As for Ms Liu and Mr Wan, their evidence is adduced to show the nature of the relationship between the Deceased and the defendant, which I find to be rather neutral.  Their evidence also show that in 2014 the Deceased was still of a sound mind, which the plaintiff is now not disputing.  As for Ms Mau, her evidence is largely on the relationship between the defendant and the Deceased over the years, which is consistent with the defendant’s case but which I do not need to rely on.  She also gives evidence as to the circumstances of the discovery, by her, of the briefcase which contained the original of the 2014 Will, a matter on which, as I shall explain below, I need not make findings.  I do not need to say anymore about the evidence of each of these witnesses save to say that I have no reason to doubt the truth of what they say in writing or orally.

F2.  The Affirmation of the Wife

48.  The plaintiff also produces an “Affirmation” dated 15 March 2017, purportedly signed by the Wife before a notary in the Mainland on that date, by way of his supplemental witness statement dated 2 September 2019.  The Wife is not called as a witness, and the Affirmation is adduced as hearsay evidence. 

49.  I decline to admit the Affirmation of the Wife in evidence, whether under Order 38, rule 2(1), of the Rules of the High Court[19] or section 47 of the Evidence Ordinance.[20] I take into account the following factors:

(1)  According to a medical report dated 27 March 2019 from a hospital in Nanjing, the Wife was suffering from dementia.  The report stated that the Wife was 95 years old, meaning that when she purportedly signed the affirmation, she was 93 years old.  There is no medical evidence as to her mental capacity as at 15 March 2017, which was not long before she was certified to be suffering from dementia, and was not long after she, according to the plaintiff, suffered twice from cerebral infarction just before the Deceased passed away.  In the premises, in my judgment there is a sufficient doubt as to whether the Wife understood or agreed with, or was capable to understand or to agree with, the contents of the Affirmation as at 15 March 2017.  In this regard, the complaint by Mr Man that the defendant has not applied to cross-examine the Wife has no substance: when the Affirmation was first served on the defendant, she was already told that the Wife had dementia.

(2)  There is also no evidence of whether the notary, who just confirmed that the Wife signed before him, had considered the capacity of the Wife in making the Affirmation.

(3)  There is also no explanation why the plaintiff did not produce the Affirmation until 2 September 2019, almost two years and a half after it was supposed to have been made.

(4)  Given the contents of the Affirmation, which concern inter alia the relationship between the defendant and the Deceased, and what happened when the Deceased returned to Nanjing in 2014, against the context of other evidence adduced before me, the defendant is in my judgment entitled to ask very pertinent and legitimate questions of the Wife, which she cannot.  This is prejudicial to the defendant.[21]

(5)  The Affirmation was made on 15 March 2017, at a time when the Wife supposedly, on the plaintiff’s case, still had capacity, and she was not certified until 27 March 2019.  There is no explanation as to why, when the first round of witness statements were prepared and exchanged (the statements of the plaintiff and Wu Yujin were dated December 2018), no witness statement of the Wife was prepared. Was it because by late 2018 the Wife was already considered to be lacking in capacity?  I note that in his witness statement dated 27 December 2018, the plaintiff says that the Wife’s physical and mental conditions had worsened, and had lost the ability to take care of herself,[22] which is not quite the same as losing the mental capacity to be a witness.  The point is that, in December 2018, the plaintiff ought to have produced a witness statement of the Wife (if she was considered to still have capacity), or the Affirmation (if she was considered that she did not have the capacity).  Neither was done.  Nor is the failure explained.  Further, if the Wife had already lost the necessary mental capacity by December 2018, that makes the doubt as to the Wife’s mental capacity as at 15 March 2017 even stronger.

(6)  The factors listed under section 49(2) of the Evidence Ordinance, although expressly said to be factors in assessing the weight of hearsay evidence, have been held to be relevant also to the question of whether the Affirmation should be admitted or excluded under section 47(1)(b) of the Evidence Ordinance[23] or Order 38, rule 2(1).[24]  Going through those factors (assuming the Wife had the requisite capacity, understanding and knowledge of the contents when she signed the Affirmation but had since lost her capacity):

(a)  It is not practicable to produce the Wife as a witness at the trial. 

(b)  The Affirmation was not made contemporaneously with the matters stated therein.

(c)  The contents concern mainly what the Wife’s own knowledge of various matters.

(d)  The Wife has a personal interest in this matter as she stands to take half of the Estate if the 2014 Will was found to be invalid and the Deceased therefore died intestate.  The plaintiff, her own son, who produces this Affirmation, obviously also has an interest.

(e)  From its face, the Affirmation was made by the Wife for the purpose of supporting the plaintiff’s case in which the Wife and the plaintiff have undoubted interests.  It is said in the Affirmation that she accepted the opinion of those acting for the plaintiff to make the Affirmation.  She was therefore making the Affirmation in collaboration with the plaintiff.

(f)  The Affirmation was purportedly made because, according to its own terms, there was a risk that she would not be able to give evidence because of her advanced age.  If there was such a genuine concern in March 2017, the plaintiff ought, as suggested by Ms Lok, to have applied to have the Wife’s evidence to be disposed under Order 39.  Nothing was done until the Wife lost capacity and thus the opportunity for the defendant to cross-examine her.  Even then, almost another six months passed before the plaintiff produced the Affirmation.

(g)  As suggested by Ms Lok, the Affirmation contains evidence from the Wife not hitherto referred to in the evidence of the plaintiff, for example the state of mind of the Deceased, or what he told the Wife, back in Nanjing in 2014.  I would not say any of the matters stated in the Affirmation is inconsistent with the other evidence adduced by the plaintiff, but they added to it and in relation to which the defendant is unable to cross-examine on.

50.  On the whole, for the above reasons, I am satisfied that the exclusion of the handwritten note is not prejudicial to the interests of justice, and I am not satisfied that it is reasonable to order the admission of the Affirmation.  In any event for the same reasons even if I admit it, I will not attach any weight to it.

F3.  Analysis of the evidence

F3a.  The relationship between the Deceased and the defendant as at 18 June 2014

51.  Having said the above on the general credibility of the witnesses, I repeat that I will not make findings, or resolve disputes of fact, based on my general impression or the general credibility of any of the witnesses, or their general demeanour.  As stated time and again by the Courts, on each issue, the surer guide is an analysis of inherent probabilities of the respective evidence of the witnesses, seen in the light of undisputed factual background and contemporaneous documents, if available.[25] On this basis, to resolve in particular the issue of the testamentary intentions of the Deceased, in the three aspects highlighted by Mr Man, in my judgment the earlier testamentary scripts of the Deceased (i.e. Items 1, 2, 3 and 7), in relation to which there is no dispute that they embodied the true, voluntary thinking of the Deceased at the time, despite the fact that they are not alleged to be valid as wills of the Deceased at any time, are the most important documents in this action.

52.  I have made some observations on those testamentary scripts that indisputably recorded the true and voluntary thinking of the Deceased at the time of the making of each at [24]-[26] above already.  On the basis of how those documents clearly evidence the views of the Deceased on the defendant as well as his own family members, and the manner in which he intended to distribute his assets after his death, which, although changing in detail from time to time, had remained largely consistent in that the defendant was always to benefit substantially thereunder and regarding his views on his family members, they provide, in my judgment, strong support that the 2014 Will, which is consistent with them in terms of the views of the Deceased on the defendant and the family members and manner of distribution, contained the true, knowing and voluntary testamentary intentions of the Deceased.  It is not as if, quite inexplicably, for the first time, the 2014 Will purports to confer substantial benefit on a person (who in fact wrote out the document herself) who was not a blood relative or even very close to the Deceased, but a mere employee.  The fact that up to June 2012 (Item 7), the Deceased had real and genuine affection for the defendant, and therefore intended to benefit her substantially after his death, whilst leaving two of his own children with practically nothing, is indisputably clear, and the question is whether, as between June 2012 and May 2014, the relationship between the Deceased and the defendant had for some reasons deteriorated to such an extent that one would have at least a reasonable doubt as to whether the contents of the 2014 Will embody the free, knowing and voluntary views and intention of the Deceased. 

53.  In his evidence, the plaintiff denies the relationship between the Deceased and the defendant to be anything other than an employment relationship, and he says he had never heard anything from his parents about the defendant being an adopted granddaughter of the Deceased, or for the latter to compliment the defendant’s performance as an employee. 

54.  Wu Yujin also says in his evidence that he had never heard the Deceased described the defendant as his adopted granddaughter, despite the fact that he was the person the Deceased trusted the most during his lifetime.  He says that the relationship between the Deceased and the defendant was not as close as the latter suggests.

55.  The plaintiff also denies that the defendant was the life-saver of the Deceased, or that his parents thought so.  This relates to what happened in December 2009, when the Deceased was taken ill in Nanjing rather suddenly.  While the plaintiff accepts that it was the defendant who called a senior official in Beijing to arrange for better medical care for the Deceased (which on the defendant’s case was why the Deceased and the Wife considered her to be the Deceased’s life-saver), the plaintiff says that she was only doing what an employee (who had the contact details of the official) should do, and it was really the Wife’s decision to send the Deceased to the best hospital there that saved the Deceased’s life.

56.  Wu Yujin also refers to the time when the Deceased was taken ill, and says that the Deceased stressed many times that it was the Wife who saved his life.  The implication is clear that, according to Wu Yujin, the defendant played no significant role.

57.  The plaintiff also says that the defendant took no part in making arrangements for the funeral of the Deceased in Nanjing, and Ling Hung did not even attend the funeral, which was surprising if they were really his adopted granddaughter and great grandson.  Nor were they described as such anywhere at the funeral.

58.  The steadfast refusal by the plaintiff and Wu Yujin, not only in their statements but also during their testimony in Court, to acknowledge the close relationship between the Deceased and the defendant, not only as at May or June 2014, but at all times, is completely inconsistent, and cannot stand, with the indisputable view of the Deceased as stated in those testamentary scripts on which there is no dispute, and I reject their evidence in this regard totally.  It is not the evidence of the plaintiff or Wu Yujin that while the Deceased and the defendant were close in 2012, they ceased to be so by May 2014, but that they were never more than an employer and an employee. The plaintiff even says, most surprisingly, in his statement that the description of the defendant as the adopted granddaughter in Item 7 was “unreasonable”,[26] when the very same document recorded the Deceased’s intention of giving one of his three real properties to the defendant absolutely.  It is not really for him (or anyone else) to opine whether it is reasonable or not for the Deceased to be, to put it mildly, fond of another person, especially one who had taken care of him in all aspects for, by then, ten years.  During his cross-examination, the plaintiff says he disputes whether this relationship between the Deceased and the defendant (that is, the latter being a養孫女) was legal or not, but this is clearly missing the point.

59.  Wu Yujin also in his statement says that it is unreasonable for the defendant to claim that she was the adopted granddaughter.[27] However, it is not the defendant who so describes herself: it was the Deceased himself who so described the defendant in the undisputed testamentary scripts.

60.  Indeed, the fact that the Deceased considered Ling Hung to be his beloved adopted great grandson is not only evidenced by the fact that in some of the earlier drafts (Items 5 and 7: the latter is an undisputed document) Ling Hung (who was described as such) was given a substantial legacy (being a third of the residuary estate), but that, on 14 September 2012, the Deceased went to the Kwai Tsing District Office to make an affirmation to take Ling Hung as his great grandson, with rights to receive properties from him.  Again, whatever is the legal effect of this affirmation is quite irrelevant.  What it shows is that how the Deceased felt about Ling Hung, and the defendant, in 2012 is beyond the slightest doubt whatsoever.  In his statement, the plaintiff simply brushes this off as saying that this affirmation only concerns the Deceased and Ling Hung, and is not proof that the defendant was considered by the Deceased as his adopted granddaughter, and the Deceased had never told him, the Wife or Wu Yujin about taking Ling Hung as his great grandson.  Given that Ling Hung (born in August 2011) was barely a year old at the time of the affirmation, it appears to me there was no reason for the Deceased to take the step of making the affirmation, and to intend to provide for Ling Hung after his death, except that Ling Hung was the son of the Deceased’s own adopted granddaughter. 

61.  The plaintiff also says in his statement that when the family, including the Wife, the plaintiff and Wu Yujin, first read a copy of the 2014 Will, they all considered the arrangements in there were unfair and unreasonable, and did not appear to be something that would have come from the Deceased.  However, as I said above, the provisions in the first part of the 2014 Will, and the views expressed in the 最後真言which explained the testamentary arrangements at least vis-à-vis his own family members, were largely consistent with those in the earlier testamentary scripts on which there is no dispute.  If the Wife, the plaintiff and Wu Yujin were surprised by the contents as alleged, this really proves how little they, including Wu Yujin, knew or understood the Deceased. 

62.  As I said at [41] above, the above shows the attitude of the plaintiff in the conduct of his case: instead of seeking to tell the truth to assist the Court in the resolution of the matter, the plaintiff refuses to acknowledge the plain, obvious and indisputable truth backed up by undisputed documents, when such truth is detrimental to his case. The same can be said of Wu Yujin.

63.  Further, given the clearly and indisputably extremely negative view the Deceased had of the plaintiff, as evidenced by the testamentary scripts, the fact (even if true) that the plaintiff had, as he alleges, never heard the Deceased describing the defendant as his adopted granddaughter is hardly surprising.

64.  It is Wu Yujin’s evidence that while he visited the Deceased in Hong Kong in 2008, 2010 and 2012 (each time for about six weeks), and they had frequent telephone conversations (usually for at least an hour once a week since 2010), the Deceased first mentioned that he was considering matters after his death in late 2013.  Thus, even on Wu Yujin’s own case, even though he was the closest of all children to the Deceased, the latter did not mention to him that he had in fact been actively considering his affairs after death (including studying and taking advice on the law on wills) since at least 2009.  Whether I accept Wu Yujin’s evidence in this regard or not, the fact is that there is no evidence that the Deceased told Wu Yujin that he was thinking about making a will in 2009 to 2012.  This again suggests that, although being the closest to the Deceased amongst all children (indeed that is not saying much given that the Deceased positively disliked (to put it mildly) the other two), the relationship might not be as close as Wu Yujin now seeks to portray.

65.  Thus, for Wu Yujin, while his relationship with the Deceased was clearly closer, but perhaps not as close as he suggests, it is not only that that the defendant was described by the Deceased himself in the draft testamentary scripts as an adopted granddaughter, including those not disputed by the plaintiff to be made by the Deceased voluntarily and with his knowledge, consistently throughout from Item 1, the defendant was to be an executrix jointly with Wu Yujin (and sometimes with Bo Fangrong as well).  In Item 3, as at 29 December 2009, the defendant was in fact named as the sole executrix, to the exclusion of Wu Yujin, even though he was to benefit more than the defendant from the Estate thereunder.  If, as Wu Yujin himself says, he had always been close to the Deceased, it is in my judgment clear beyond reasonable doubt that, as at June 2012, in the mind of the Deceased, the defendant was at least as close and trustworthy as, if not more so than, Wu Yujin.

66.  I find that it is beyond reasonable doubt that, as at June 2012, the Deceased did consider the defendant to be his adopted granddaughter, and intended that she was to benefit from a distribution of the Estate upon his death.  Given his own professed closeness to the Deceased, I find it incredible that the Deceased had never told Wu Yujin that the defendant was his adopted granddaughter, and I do not accept Wu Yujin’s evidence in this regard.

67.  That the Deceased and the defendant were really close and not just, as alleged by the plaintiff and Wu Yujin, in an employment relationship, is not only supported by the Deceased’s own handwriting, but by, for example, many photographs adduced by the defendant showing not only the daily lives of the Deceased and the defendant, but on occasions such as the defendant’s wedding and not long after Ling Hung was born (which occasions also involved the Wife).  Indeed, as accepted by Wu Yujin, before the defendant got married, the Deceased even tried to set her up with Wu Bochun, although that came to nothing in the end.

68.  The question therefore is, did anything happen between June 2012 and May 2014 so that the relationship between the Deceased and the defendant, according to the plaintiff’s case, to put it bluntly, collapsed?

69.  The plaintiff himself does not give any evidence on this, but relies on the evidence of Wu Yujin in this regard.

70.  In his statement, Wu Yujin says that, starting from 2013, the Deceased began to complain to him, on their frequent telephone conversations, about the attitude and performance of the defendant, so much so that the Deceased said he could not use the defendant anymore, and asked Wu Yujin, who was then living and working in Australia, to come back to Hong Kong as soon as possible to look after him.  Not only was the defendant getting worse in how she treated the Deceased, Wu Yujin says the Deceased told him, the defendant also pestered the Deceased to make a will.  In his testimony, Wu Yujin said when he visited the Deceased in 2012, the Deceased was not satisfied with the food given to him by the defendant as it was too light, and she delayed in giving him meals.

71.  In his testimony, Wu Yujin also says that when the Deceased raised with him the question of his affairs after he died as he was getting older and older, first in late 2013 and for about eight to ten times, Wu Yujin would interrupt as he did not want to talk about it.  On one occasion, the Deceased said that if Wu Yujin did not care about this question, the defendant and her husband would.  This is at odds with Wu Yujin’s own evidence in his statement and his testimony that the Deceased complained to him that the defendant was forcing him to make a will (rather than the Deceased himself wanting to do so).  Further, in his testimony, Wu Yujin says that when told that the defendant and her husband would care about what to happen after the Deceased passed away, he replied that “no way I can do anything. I would say this matter has nothing to do with me. He has to handle it himself”.  So in effect he was saying to the Deceased: just deal with it yourself against the two persons who had been mistreating you and forcing you to make a will.  He says that he suggested to the Deceased that he should give the defendant more money so as to appease her.[28] These are utterly incredible reactions and responses from a son who was supposed to be very close to his father, and, if true, was a shockingly uncaring attitude.  I decline to accept Wu Yujin’s evidence as to when and the circumstances of the Deceased raising with him the question of the affairs of the Deceased after his passing, or about making a will.

72.  Sometime in May 2014, according to Wu Yujin, the Deceased again asked him to come back to Hong Kong to take care of him, saying that the defendant again demanded him to make a will.  Worried about his father, Wu Yujin says he decided then to resign from his job in Australia, but he could only leave in September that year, after he had trained up his replacement. 

73.  According to Wu Yujin, the Deceased reluctantly accepted this when told.  However, he also told Wu Yujin that he had consulted his lawyer friend about the formalities of making a will, and when Wu Yujin came to Hong Kong in September, the Deceased would listen to his views, and then made his decision.

74.  In so far as evidence is adduced in an attempt to show that the state of relationship between the Deceased and the defendant as at May and June 2014, when Items 8 to 12 were prepared, was very poor, I do not accept the same. 

75.  The allegation by Wu Yujin is that he had been told repeatedly by the Deceased since 2013 of how he was being mistreated by the defendant, to the extent that she did not even let him eat properly, and he was being driven crazy, and the Deceased even said that if Wu Yujin did not come to Hong Kong to help him, it might be too late.  Wu Yujin says that he was very worried and sad about the Deceased. 

76.  Yet, despite the very serious predicament the Deceased was supposed to be in, caused by the alleged antics of the defendant, and that Wu Yujin was very worried and sad, he did nothing, and apparently did not do anything for months, and told no one.  Even when, allegedly, in May 2014 the Deceased told him urgently to come and that he could not wait anymore, all that Wu Yujin apparently did was to agree to come in four months’ time (i.e. in September 2014).  This is hardly the act of a son, very close to his aging father, being told constantly of how miserable his father had become.  In cross-examination, he accepts that all he did was to ask the Deceased, in effect, to pay the defendant more.  I find this utterly incredible.  When asked why he did not tell the plaintiff, who was close by in Shenzhen, about this, he says that “It was a family matter. It’s no use for me to raise it”.  One wonders why it was no use for Wu Yujin to raise a family matter with his family members, namely his own brother, or his sister or nephew (i.e. Wu Bochun).  Although they did not talk regularly, it is not as if the relationship between Wu Yujin and the plaintiff was so poor in 2014 that they did not speak to each other.  In re-examination, Wu Yujin says that they were close. 

77.  At one time during cross-examination, rather inconsistently, Wu Yujin, after referring to the Deceased asking him to come back to Hong Kong because the defendant was not treating him well, says he did not take the matter into his heart.[29]

78.  It is not in dispute that the Deceased returned to Nanjing sometime in July 2014 and remained there until he, rather unexpectedly despite his age, passed away on 23 August 2014.  Wu Yujin says he was surprised when told by the Deceased that he was going back, because it was extremely hot in Nanjing at that time of year, and the long journey (taking up to eight hours) and the stay there would be detrimental to his health.  The Deceased replied, according to Wu Yujin (who clarifies in his testimony that this conversation took place after the Deceased had gone back), that he did not want to go either, but because he was put into a corner by the defendant,[30] who fought with him and demanded him to make a will every day, he wanted to hide from her in Nanjing, until September when Wu Yujin would come to Hong Kong.  I have already discussed this part of the evidence of Wu Yujin at [42] above.  His written and oral evidence is clearly inconsistent, a fact which Wu Yujin refuses to acknowledge, and because of this inconsistency I decline to accept either version, or to accept that the reason for the Deceased going back to Nanjing was as alleged by Wu Yujin.

79.  One also would have thought that the Deceased, once having safely escaped from the defendant back in Nanjing, would then take steps to remove the defendant from his life, if the allegation of Wu Yujin is true, for example by arranging for another carer in Hong Kong or Nanjing, and to take steps to ensure that the 2014 Will would be known to all to be something not made by him voluntarily and not intended to be of legal effect.  There is no evidence of anything like that to have happened.  Indeed, it is inexplicable that, getting no assistance from Wu Yujin but suffering daily from the defendant’s conduct, the Deceased, although very old but with money, and with no evidence or allegation of any mental incapacity or issue, would not seek assistance elsewhere, for example from Mr Lee, when they met in July 2014. It is also the defendant’s evidence, not challenged by the plaintiff, that Wu Bochun also came to Hong Kong to visit the Deceased in March 2014.  If the evidence of Wu Yujin is true that at least from early 2014 the Deceased had been complaining about the defendant, it would be surprising if the Deceased did not ask Wu Bochun to help.  If he did, it is likely that Wu Bochun would at least have mentioned this to his father, i.e. the plaintiff, or his uncle, i.e. Wu Yujin, but there is no evidence that he did. 

80.  I decline to accept the evidence of Wu Yujin on his alleged telephone conversations with the Deceased in 2013 and 2014 about how the defendant had been mistreating him, about asking Wu Yujin to come back, about him resigning, and about making a will after Wu Yujin had come back.

81.  On the basis of my finding that it is beyond reasonable doubt that the Deceased and the defendant was, as at June 2012, having a close relationship, there is really no basis from any evidence, apart from the bare assertions of Wu Yujin which are inherently incredible and which I do not accept as I explained above, to support a finding that the relationship had collapsed by May or June 2014.  The fact that nothing happened, but that the relationship and living arrangements between the defendant and the Deceased continued throughout, speaks volume.  While there is some suggestion that with two very young children, on top of having to take care of the Deceased who had become more dependant, the defendant had been under stress in the few years leading up to the death of the Deceased, the evidence, not seriously challenged and which I accept, is that she had been getting help from her mother, as well as her husband or mother-in-law when they took turns to come to Hong Kong.  Anyway, it does not follow from the fact that the defendant was exhausted and stressed, and had even sought medical help, that the defendant would have mistreated the Deceased as alleged, including the pestering of him to make a will.  I have no doubt, and I find, that the relationship between the Deceased and the defendant, as at 18 June 2014, when the 2014 Will was prepared, was the same as that as the Deceased indisputably and voluntarily expressed in June 2012, being a close one between an adopted grandfather and adopted granddaughter, so much so that the Deceased would entrust her with the administration of his estate, and to be bequeathed a substantial portion of the assets, albeit on terms which would not benefit the defendant for 20 years (see [21] above).

F3b.  The Deceased’s knowledge and approval of the contents of the 2014 Will

82.  According to the defendant in her first affirmation of testamentary scripts:

“3. On 18^th June 2014, words were dictated by the Deceased and copied down by me on paper as directed by the Deceased. The Deceased then signed on the front page and on the last page of the testamentary script so copied down (‘the Will’). The Will was written on 7 pages of paper. The original of the Will was delivered by me to my solicitors, Messrs. Chiu, Szeto & Cheng, and is now kept in their possession”.

83.  She explains further in her second affirmation of testamentary scripts:

“8. On 18^th June 2014, the Deceased dictated to me a will and solemn declaration in Putonghua (‘2014 Will’ and ‘2014 Solemn Declaration’) respectively, which I wrote down on paper by hand.

9. After the Deceased signed on the front page of the 2014 Will and on the last page of the 2014 Solemn Declaration, he kept the originals (the whereabouts of which was not known to me), and handed me a copy of both the 2014 Will and 2014 Solemn Declaration. I could not locate the originals after the Deceased’s funeral.

10. At about the end of April 2016, my mother accidentally found out that the 2014 Will and 2014 Solemn Declaration were kept in the Deceased’s briefcase inside his bedroom at the Manhattan Hill when my mother was tidying up the room”.[31]

84.  In light of my finding that the Deceased and the defendant remained close as at 18 June 2014, with the contents of the 2014 Will largely consistent with the undisputed testamentary scripts as regards the defendant and his family members, I accept the aforesaid account by the defendant of what happened on that date.

85.  Indeed, under the terms of the 2014 Will, the defendant was to derive no benefit for 20 years after the Deceased’s death. In fact, as I said at [24(4)] above, the defendant is in a worse position than she would have been under Item 7, when she was to be given one of the three real properties absolutely and immediately upon the death of the Deceased.  Further, under Item 7, Ling Hung was to get 33% of the residue estate, whilst he is getting nothing under the 2014 Will.  Thus, the 2014 Will could hardly be the result of someone who had pestered, and unduly influenced, the Deceased.  It seems most improbable that she would have created the 2014 Will on her own volition as alleged, and wrote it out for the Deceased to sign.  If the defendant is someone whom the plaintiff and Wu Yujin are seeking to portray, she would have insisted the Deceased to give her (and Ling Hung) substantial benefits immediately upon his death, for example, in the same terms as Item 7. She did not.

86.  In light of the aforesaid findings, and as it is not in dispute that the Deceased did sign on the 2014 Will (on both the first page and at the end of最後真言), the contents of which as I said above were largely consistent regarding the defendant and his family members with those prepared earlier with no allegation (let alone evidence) of any mental incapacity of the Deceased, it is plain beyond reasonable doubt in my mind that, like the earlier undisputed testamentary scripts, the 2014 Will (in both parts) contains the true and voluntary views and intentions of the Deceased, in that the Deceased knew and approved of its contents.  Thus, if and in so far as it is necessary, I also find that the Deceased and the Wife did consider the defendant to be his life-saver (as recorded in the最後真言), and what happened in Nanjing at the time when the Deceased was taken ill was as relayed by the defendant in her evidence.  I note that neither the plaintiff nor Wu Yujin were present at the time in Nanjing and they are unable to give evidence thereon based on their own personal knowledge.

87.  That the Deceased was aware of, and approved, the contents of the 2014 Will is also supported by the fact that he then took steps consistent therewith. 

88.  First, one day after he signed the same, he went to the China Construction Bank to place RMB200,000 on fixed deposit.  The defendant says that that was to provide for the intended legacy to Wang Xiaoxun. Even though the legacy was HK$200,000 rather than RMB200,000, the timing and the numerical figure suggest to me that the purpose of this fixed deposit was as the defendant says.  Further, as the defendant says, and which I accept, the interest rate for a deposit in Renminbi was higher than Hong Kong dollars.  I so find.

89.  Second, the 2014 Will does not mention one of the real properties owned by the Deceased at the time, namely Flat 10D, which was mentioned in the previous draft will (Item 7).  Soon after the signing of the 2014 Will, the Deceased sold Flat 10D.

90.  I reject the plaintiff’s case that it was the defendant who wrote out the 2014 Will on her own volition, based on the earlier testamentary scripts, and then forced the Deceased to sign, without him knowing the contents thereof.  The suggestion that this act of the defendant was prompted by her overhearing the Deceased’s conversation with Wu Yujin sometime in May 2014 that he was making a will must be rejected, given my dismissal of Wu Yujin’s evidence in this regard.  Further, as I said, if what happened was as suggested by the plaintiff, it would be most surprising if the defendant did not put in terms of distribution much more favourable to herself and/or Ling Hung, such as those in Item 7, and such a case is also at odds with my finding that the close and cordial relationship between the Deceased and the defendant remained as before in June 2014.  The Deceased’s conduct thereafter (in meeting with Mr Lee and gave him a copy of the 2014 Will, and what he did (or rather did not do) when back in Nanjing: see below) is also contradictory to the plaintiff’s case.

F3c.  Undue influence

91.  I see no basis for me to find or infer that there was any undue influence by the defendant.  In light of my rejection of the evidence of Wu Yujin, I do not think that the plaintiff has discharged the evidential burden of raising an answerable case of undue influence.  Further, I find that the Deceased, whose full mental capacity to do so is not in dispute, voluntarily gave directions to make the 2014 Will on terms largely consistent regarding the defendant and his family members with those in earlier, undisputed testamentary scripts, which, while of substantial benefit to the defendant, were not as beneficial as it could have been or in terms which a person exercising undue influence is likely to include.  As I found above, the Deceased knew and approved of the contents of the 2014 Will.  As I said, at the very least, the defendant would have influenced the Deceased into putting in terms such as Item 7, which are more favourable to her and Ling Hung.

92.  Apart from relying primarily on Wu Yujin’s evidence for his case of undue influence which I have rejected, the plaintiff also relies on other matters, namely (i) the defendant’s alleged dishonesty in the witness box; and (ii) the suspicious circumstances of the making of the 2014 Will.  For (i), as stated above, I am not sure that the defendant has been shown to be a generally dishonest witness but in any event I do not and cannot decide issues on general credibility alone.  For (ii), see [107(4)] and [107(5)] below. 

F3d.  Immediacy

93.  The only question left is the question of immediacy.  On this, Mr Man mainly takes two points:

(1)  The failure to follow the required formalities for a valid will under section 5(1) of the Wills Ordinance, which the Deceased had studied diligently and which the Deceased had caused to be put in the earlier testamentary scripts, thereby suggesting that he did not intend the 2014 Will to be a valid will.

(2)  Evidence that the Deceased did not intend the 2014 Will to have immediate effect.  Apart from the evidence of Wu Yujin that the Deceased told him that he wanted to discuss the matter with him when he came to Hong Kong in September 2014, which for reasons above I reject, Mr Man refers to the evidence of the defendant herself that the Deceased told Mr Lee in July 2014 that he wanted the 2014 Will to be properly attested when he returned from Nanjing.  Mr Man also refers to the defendant’s evidence that on 22 August 2014, the Deceased, whilst in Nanjing, told the defendant, who was in Ningbo at the time, over the telephone that the Wife had consented orally to the 2014 Will, thereby suggesting that there could have been no immediate testamentary intention as at 18 June 2014, as the Deceased must have thought that he needed to talk to the Wife and obtained her consent to the contents of the 2014 Will first.

94.  Regarding the meeting with Mr Lee in July 2014, before the Deceased went back to Nanjing, the evidence of the defendant is as follows.  The Deceased and the defendant met with Mr Lee in a restaurant near their home.  The Deceased gave a copy of the 2014 Will to Mr Lee and after Mr Lee had read the same, the Deceased then said that after he had come back from Nanjing, he would ask Mr Lee and his wife to be the witnesses on the 2014 Will when they had time.  Mr Lee took away the copy.  As stated above, Mr Man relies heavily on this to argue that (on the defendant’s own case) the Deceased could not have intended that the unattested 2014 Will to have effect.  I would point out that during cross-examination, the defendant says that the Deceased did not ask Mr Lee and his wife to witness the 2014 Will later.

95.  On the question of the testamentary intentions of the Deceased, the evidence of Mr Lee is crucial, and is basically on two meetings, one in July 2014, before the Deceased went back to Nanjing, where the Deceased, on the plaintiff’s case, supposedly gave a copy of the 2014 Will and said that he would have it properly attested by Mr Lee and his wife upon his return, and the other in September 2014, after the Deceased’s passing, where Mr Lee, on the plaintiff’s case, supposedly told the plaintiff and Wu Yujin that the 2014 Will was invalid.

96.  During his testimony, Wu Yujin says that he has never read the contents of the 2014 Will carefully: “To be frank, up till now, I did not read carefully the will and also the contents of this will … And to be frank, I haven’t read this documents carefully for seriously”.  When he was told by Mr Lee that the 2014 Will was invalid, he says, he did not bother to read it or keep a copy.

97.  Mr Lee’s evidence can be summarised as follows:

(1)  He had known the Deceased since about 1980, and had acted for him in the sale and purchase of real properties.

(2)  The Deceased asked him about the formalities of making a will in 2009, but had never formally instructed him to do so.

(3)  Sometime in July or August 2014, he had some conveyancing documents for the Deceased to sign.  That was the last time that Mr Lee saw the Deceased.  They met at a restaurant near the Deceased’s residence, and at that meeting the Deceased gave him an envelope which contained a copy of the 2014 Will.  Mr Lee saw its title (“平安紙”) and then put it back without reading it in detail. 

(4)  In his evidence in chief, Mr Lee says that the Deceased did not say why he was giving Mr Lee a copy of the 2014 Will.  The Deceased did not ask Mr Lee to prepare a will for him, or say that he wanted to make a formal will.  Nor did he mention asking Mr Lee or his wife to be a witness to any formal will.  In cross-examination, Mr Lee says that it had happened with the Deceased (and sometimes other clients) that he would be given documents without any instructions on what to do about them, and he would not actively ask for instructions in such instances.  He agrees that the Deceased might have said something to him when he handed over the envelope, but he cannot remember now. However, Mr Lee was certain that the Deceased did not instruct him to prepare a will, because if he was so instructed then he would have acted accordingly. He is also certain that the Deceased did not ask him to be a witness.

(5)  After the Deceased passed away, the defendant called Mr Lee and asked him to fax to her the copy 2014 Will, which he did. (According to the header of the faxed copy, the copy 2014 Will was faxed to the defendant on 27 August 2014 at 1:13pm.)

(6)  Mr Lee met the plaintiff and Wu Yujin, as arranged by the defendant, after the Deceased had passed away.  Even though he cannot remember what was discussed, he says that he was not asked if the Deceased left any valid will.  Mr Lee says that he would have remembered if he was asked something so specific and special.  Nothing was said about any wills.  Nor did Mr Lee bring any documents to the meeting.  Nor did the plaintiff and Wu Yujin ask Mr Lee for any advice as to how to deal with the Estate.

98.  During his cross-examination, it is put to Mr Lee his evidence is not truthful because: (i) Mr Lee is of the view that the 2014 Will is valid and wants to give evidence to support that; and (ii) because he had acted for the defendant in filing the caveats and in this action initially before he ceased to act on objection by the plaintiff, he wants the result of this action to be in her favour.  Mr Lee denies the same.

99.  I do not accept what is put to Mr Lee.  It is a very serious allegation to make against an officer of the Court that he is deliberately giving untrue evidence just to assist his (former) client or to support what might have been his view.  There is simply no basis to put such a case to, and to find such a case against, Mr Lee.  All lawyers, whether counsel or solicitors, would want the lay clients to win, and to have their advices and views vindicated.  But this is no basis to suggest, without more, that the lawyers would not be acting properly when dealing with either the relevant evidence or the law.

100.  Mr Lee comes across as an honest witness trying his best to recall what to him at the time were unremarkable meetings eight years ago.  When challenged in cross-examination, he frankly admits that when the Deceased gave him the envelope containing the 2014 Will, the Deceased might have said something but he cannot remember.  What he is certain is what was not said which I find to be inherently credible for the reason he gives (i.e. he would have acted had the Deceased gave him some instructions to make a formal will or for he and his wife to witness the signature, which in either case would have required Mr Lee to act on the draft which he was given (but he did not)).  It may also appear odd that the Deceased would have given him documents without any instructions, such as the copy of the 2014 Will, and Item 4 (which was faxed to Mr Lee without any instructions).  Mr Lee simply says that that happened from time to time, both with the Deceased and other clients.  If Mr Lee comes to Court intending to give untrue evidence with the motives as Mr Man suggests, he could have invented some explanations (such as some specific instructions: in particular, for the 2014 Will, he could have said that the Deceased in fact told him that that Will was his will which he intended to be immediately effective), but he did not. 

101.  Mr Lee, as I said above, has no personal interest in the outcome, and I find his recollection of what happened, or in particular what was not said, during those meetings and the reasons why he can so remember, to be inherently credible.  I accept his evidence which I summarised at [97] above and find them as facts.  To the extent that the evidence of the plaintiff, Wu Yujin, and even the defendant (see further [103] below), is inconsistent or in conflict with such findings, I reject such evidence.

102.  On the basis of such findings, I also find that it is beyond reasonable doubt that when he signed on the 2014 Will, the Deceased intended that it was to take effect immediately and finally upon execution, subject only to his death.  There were no other conditions.  I say this for the following reasons:

(1)  It is clear that as from at least 2009, the Deceased, who was by then 85 years old, had been seriously considering making a will.  A note made by the Deceased dated 25 May 2008 is produced by the plaintiff before me, in which the Deceased recorded his intention to make a will because of his advanced age.  He consulted Mr Lee informally, and studied the law on wills in Hong Kong.  He also took legal advice on the making of wills.

(2)  In 2014, the Deceased was 90 years old.  He had done a few drafts already and from those drafts it is clear to me that he had, by June 2014, come to a fairly firm view of how to distribute his assets after his death.  Of course, that, like all wills, was subject to change by the testator any time.  Given his advanced age, there is no basis to say that the Deceased did not intend the 2014 Will to have immediate effect (subject only to his death).

(3)  If the Deceased did not intend the 2014 Will to have immediate testamentary effect, but was merely a draft and the execution of the actual, effective will was to be witnessed by Mr Lee and his wife, there was no point for him to sign it on 18 June 2014 at the front and back in their absence.  The act of signing, unlike most (if not all) of the earlier scripts which were unsigned, suggests to me strongly that the Deceased intended the 2014 Will to have legal effect.

(4)  Nor is there any reason for the Deceased to give a copy of the 2014 Will to Mr Lee without further instructions to him to prepare a formal will based on it, if the Deceased did not intend the 2014 Will to have immediate effect.  The handing over of a copy of the signed 2014 Will to Mr Lee without such instructions is a very strong indication that the Deceased intended the same to be in itself a document with legal effect with no further action required.  This fact, on top of the fact that the Deceased did sign the 2014 Will, is strongly supportive of an intention of the Deceased that the 2014 Will was to have immediate effect (subject only to his death), unlike Item 7 which, although also signed, a copy thereof was not provided to Mr Lee. 

(5)  The plaintiff relies heavily on the fact that the Deceased had studied, and took legal advice on, the law on wills in Hong Kong and the 2014 Will did not, like the earlier drafts, follow the required formalities.  This in my judgment is neutral because if the Deceased did study and take legal advice on the law of wills as diligently as the plaintiff suggests, it is probable that he would also have known that an informal, homemade, will is also valid.  The fact that attestation clauses were put in earlier drafts (including Item 7 which the Deceased signed but without witnesses) suggests to me that the Deceased intended those to be properly attested later, and the lack of such clauses in the 2014 Will suggests that the Deceased, who nevertheless signed it, intended it to have immediate effect without the need for further formalities.  While the plaintiff produces materials suggesting that the Deceased had studied the law on wills and had noted in particular the parts on formalities, there is no evidence when those notes were made.  If, as the plaintiff suggests, the Deceased knew that a will had to be signed and witnessed for it to be valid, and if he intended to follow the necessary formality, then why did he sign the 2014 Will, in the absence of an attestation clause and witnesses?  And why did he not give instructions to Mr Lee to prepare a formal will when he handed him a copy of the 2014 Will?  While I note that Item 7, which no one suggests is anything but a draft, was also signed by the Deceased, there is no evidence that he took the additional step of giving it (or a copy thereof) to a solicitor.[32] 

(6)  The plaintiff repeatedly points to the differences in terms of format between the undisputed testamentary scripts and the 2014 Will, and in my judgment they in fact point to a finding that the Deceased did intend the 2014 Will to have immediate effect (subject only to his death).  The exclusion of an attestation clause, and the lack of space for witnesses’ signatures, in the 2014 Will, when he had included them in earlier drafts, suggest strongly to me that the Deceased had decided that attestation was not necessary and would not be arranged. 

103.  I have not overlooked the evidence of the defendant which the plaintiff relies on to say that the Deceased did not have the intention for the 2014 Will to have effect (see [30(1)] above).  However:

(1)  As for what happened at the July 2014 meeting, the evidence of Mr Lee, which I accept, is clear: there was no mention of the Deceased asking Mr Lee and his wife to be witnesses.  In so far as the evidence of the defendant is to the contrary (which she retracts in cross-examination anyway), I prefer that of Mr Lee.  Since the question of witnessing a will is more a matter of a legal nature, the recollection of a solicitor is more likely to be more reliable than that of a lay person.  In any event, even if the Deceased did mention the question of witnessing (which I find he did not), that would not in itself suggest that, in the meantime, the 2014 Will, which the Deceased already signed in the absence of Mr Lee and his wife, was not intended to have effect, as otherwise there was, as I said above, no reason for the Deceased to sign it at all.[33] The acts of signing and giving a copy to Mr Lee without further instructions suggest to me strongly that the 2014 Will was intended to have immediate effect, and it was not merely a step preparatory to the making of a formal will without legal effect of its own.[34] Since the 2014 Will does not contain a space for witnesses, if Mr Lee and his wife were to be witnesses on it at some future time, a formal will containing such a space would need to be prepared, but as I have found the Deceased did not give such instructions to Mr Lee. 

(2)  As for seeking the views of the Wife, I accept the evidence of the defendant that what the Deceased had in mind was more likely to be seeking her views as a matter of respect rather than approval as a pre-condition for the effectiveness of the 2014 Will.[35] This is because by then the Deceased had been thinking about making a will for at least five years and it is most unlikely that, if the Deceased would need the consent or approval of the Wife, he would not have done so already, and her views and general agreement obtained.  As I said, the manner of distribution regarding the defendant and the family members had been largely consistent throughout.  It is unlikely that the effectiveness of the 2014 Will was dependent on the Wife’s approval because had it been so it would seem to me that the Deceased would not have given a copy of it as signed to Mr Lee without any reservation.  Further, as Ms Lok suggests, it is inherently improbable for the Deceased to consider that he needed the Wife’s consent, given the fact that it was he who made his fortune alone in Hong Kong, when the Wife stayed in Nanjing the whole time (except for occasional visits).  Further, on the plaintiff’s own case, it was not a question of seeking the consent of the Wife anyway because his case is that the Deceased did not know about the contents of the 2014 Will himself.

F3e.  Conclusion on the validity of the 2014 Will

104.  I find the 2014 Will to have been duly executed and there is no reasonable doubt that the document embodies the testamentary intentions of the Deceased, as stated in section 5(2) of the Wills Ordinance.  The Deceased had the intention to make a revocable ambulatory disposition of his assets which was to take effect on his death.[36]  He intended the 2014 Will to have immediate effect, subject only to his death.

F3f.  Other matters

105.  There are a number of factual disputes between the parties which I do not think is necessary for me to resolve one way or another, for example:

(1)  What happened at the Flat on 25 August 2014, when the plaintiff, instead of rushing back to Nanjing from Shenzhen on hearing the news of his father’s passing on 23 August 2014, went to the Flat as directed by Wu Yujin, purportedly to retrieve a briefcase containing important documents of the Deceased, and entered the Flat with a key taken by Wu Bochun urgently from Nanjing to Shenzhen without notifying the defendant.  This is indeed another sad illustration of what was the relationship between the Deceased and the plaintiff.  What I would only say is that the plaintiff’s evidence in this regard, that he was given a copy of the 2014 Will by the defendant but on noticing that it was supposed to be a will of the Deceased declined to take it and asked the defendant to give it to the Wife directly later, is utterly incredible as this is totally inconsistent with his own stated purpose of the visit, namely to retrieve important documents of the Deceased.

(2)  What happened in Nanjing around the time of the funeral of the Deceased, when the locked briefcase of the Deceased was handed over by the defendant to the Wife.

(3)  The circumstances of the location of the original of the 2014 Will, purportedly by the defendant’s mother when she was tidying up sometime in 2016.  The plaintiff challenges the evidence of the defendant and her mother in that regard and suggests that the defendant actually had the original all along before the alleged discovery in 2016 but did not produce it because she knew that it was invalid.  I am not sure that is a reasonable inference to draw.  On either side’s case, the defendant did produce a copy of the 2014 Will to the plaintiff on 25 August 2014 at the Flat.  So, to her, the 2014 Will itself must be a legally valid document, otherwise she would not have shown a copy of it to the plaintiff even if, as she herself claims, she thought that without the original the 2014 Will might not be enforceable.[37] If she thought that the 2014 Will was invalid, then there is no reason why she would, almost two years later in May or June 2016, suddenly decided to produce the original anyway.  Mr Man suggests that it was prompted by the fact that the defendant had fallen out with the Deceased’s family, and they were asking her to leave the Flat.  This, I must say, is a curious theory: if, as the plaintiff is suggesting, the defendant knew that the 2014 Will was invalid, then the falling out would not have prompted her to produce something which she knew was of no legal validity: to do so would have ultimate adverse consequences for her.  I reject the plaintiff’s case in this regard.

The above incidents relate primarily to the handling of the original and the copy of the 2014 Will. However, since there is now no dispute that the 2014 Will was indeed a document signed at the time by the Deceased, and not fabricated by the defendant sometime after the Deceased’s death, I do not see how the resolution of the aforesaid and other factual issues raised would be material one way or another to the issues which I need to decide and have decided. 

106.  There is also no need for me to make findings on events after the plaintiff came to Hong Kong in the 1980’s.  Suffice to say that, whatever happened and whatever the reasons, the Deceased’s view on the plaintiff, as shown by the undisputed testamentary scripts, as at 2009 and later, was extremely negative. 

F3g.  A summary of the points

107.  I have dealt with the points raised by Mr Man as recorded above, but for the sake of completeness:

(1)  [25(1)]: the Deceased placed his signature both at the beginning of the 2014 Will and at the very end, which in my judgment signified both his approval of its contents and an intention that it as a will was to have immediate effect.  The fact that the signatures were put on different locations than earlier drafts and from the strict requirements of the Wills Ordinance does not, in my judgment, point to a lack of testamentary intentions in all its aspects, but is in fact proof of such intentions, otherwise there is no reason for the Deceased to sign at all.

(2)  [25(2) and (3)]: see [102(6)] above.

(3)  [25]: I fail to see how the wrong date (1924), and the fact that the two pages in the first part of the 2014 Will were unnumbered, are of any relevance to any aspect of the testamentary intentions of the Deceased.  The reference to 1924 put on the last page of the 最後真言 is obviously a mistake, and cannot be indicative of the state of mind of the Deceased (as to immediacy, voluntariness and knowledge of contents) one way or another.  As Ms Lok rightly points out, the plaintiff is scrapping the barrel in relying on this clear mistake.  Nor is the fact of whether the pages were numbered or not.  It hardly makes sense to say that a person will number the pages if he intends a document to be legally valid or effective, and not so otherwise.

(4)  [30(1)]: see [103] above.  I reject the evidence of Wu Yujin and accept the evidence of Mr Lee.  As for the Deceased studying and taking advice on the law of wills, see [102(5)] above.

(5)  [30(2)]: the fact that 2014 Will gave substantial benefit to the defendant, who wrote out the same, is not sufficient to cast a doubt on its validity in the context of this case, given that it is largely consistent with the earlier undisputed testamentary scripts (and indeed the defendant is worse off as compared to Item 7) and my finding of the continuous close relationship between the Deceased and the defendant in June 2014.  Any suspicion[38] that may have arisen from the fact that the 2014 Will was handwritten by the defendant who would derive substantial benefits from it is, in my judgment, dispelled completely.  The reason for the Deceased to bequeath assets to the defendant was not only plausible, but is supported strongly by the undisputed testamentary scripts.  There is evidence that the Deceased did tell the Wife about the 2014 Will, a fact which the plaintiff himself relies on. 

(6)  The plaintiff refers to other matters which he suggests were suspicious, namely:

(a)  The facts that when the 2014 Will was prepared only the Deceased and the defendant were present, and the Deceased did not take independent legal advice.  However, the same facts existed for the undisputed testamentary scripts.

(b)  The Deceased did not consult Wu Yujin before.  This is not a valid point given that even on Wu Yujin’s own case, the Deceased did not consult him when he prepared the undisputed testamentary scripts.  I acknowledge that those were intended to be drafts only but if in the course of at least three years when the Deceased was seriously considering the making of a will without talking to Wu Yujin about it, there is nothing suspicious about the Deceased not talking to Wu Yujin in June 2014.  As I said, I reject Wu Yujin’s evidence on what the Deceased was supposed to have told Wu Yujin about the making of a will in 2013 and 2014.

(c)  That the Deceased did not direct the 2014 Will to be typed, when he had done so since 2009.  However, the typed scripts are agreed to be mere drafts and thus typing or otherwise is not in itself an indication of intention.  Further, as Ms Lok points out, this point has not been put to the defendant.

(d)  That the Deceased chose to dictate to the defendant for three to four hours, when he could have asked her to copy from earlier scripts.  This I agree may raise some eyebrows but, in light of all the other factors which I consider to be strongly supportive of the validity of the 2014 Will and the requisite state of mind of the Deceased, in my judgment this is not sufficient to raise a reasonable doubt.

(e)  That the defendant changes her evidence as to what the Deceased was holding when he dictated the 2014 Will.  She said only Items 1 and 2 originally but then added Item 9 during cross-examination.  On this, I do not believe that the defendant might have remembered incorrectly the matter some years ago arouse suspicion or a reasonable doubt.

(7)  [30(3)]: Wu Yujin’s evidence in this regard is rejected and what the Deceased did or did not do after 18 June 2014 in fact supports the finding that the Deceased knew and approved of the contents of the 2014 Will, without any undue influence: see [88]-[89] above.  The fact that the Deceased was dependent on the defendant must be viewed in light of the fact that he did nothing to “disown” the 2014 Will even when back in Nanjing just before his death.

(8)  [31]-[32]: I see nothing suspicious about the account of the defendant concerning the drafting of the 2014 Will on 18 June 2014.  By then, the Deceased had been thinking about the making of a will for at least five years and had gone through a number of drafts, so for him to dictate smoothly to the defendant, in particular with the assistance of the earlier scripts which the Defendant was holding at the time, is not surprising at all.  (This can be contrasted with Item 2, apparently the first time the Deceased had his thoughts on his family members set in writing, which contains many corrections.) As to why the Deceased saw the need to prepare the 2014 Will so soon after making Item 9 in basically the same terms, it is perhaps pure speculation as to why.  However, as I said above, if the 2014 Will was made on the defendant’s own volition, it appears to me that the defendant would have put in more favourable terms than the actual contents of 2014 Will (such as those in Item 7).  Further, it is not as if the plaintiff accepts the authenticity and voluntary involvement of the Deceased in making Item 9: if the defendant did prepare the 2014 Will and force the Deceased to sign, one may also ask why the defendant did not simply force the Deceased to sign Item 9?

G.    CONCLUSION AND DISPOSITION

108.  For the above reasons, I would answer each question in the List of Issues ([22] above) as follows:

(1)  The 2014 Will complies with the requirements under section 5(2) of the Wills Ordinance and constitutes a valid will of the Deceased.

(2)  Yes.

(3)  No.

(4)  The 2014 Will is valid, and that it should be pronounced in solemn form.

(5)  Not applicable.

(6)  See below.

109.  I dismiss the plaintiff’s action and I allow the defendant’s counterclaim.  I make:

(1)  A declaration that the Will consisting of two pages embodies the Deceased’s testamentary intentions and constitutes his valid will duly executed under section 5(2) of the Wills Ordinance.

(2)  An order that the solicitors for the plaintiff is to send a copy of this Judgment to Wu Yujin as soon as practicable and in any event within 7 days of the date of this Judgment, with an explanation in Chinese of the effect of the declaration and orders this court is making.

(3)  An order that Wu Yujin do confirm in writing within 28 days of the date of this Judgment whether he is willing to be appointed as an executor of the Will together with the defendant:

(a)  If Wu Yujin confirms that he is willing to be appointed as an executor of the Will together with the defendant, or if he does not reply within 28 days as aforesaid, an order that the Will be pronounced in the solemn form and probate of the estate of the Deceased be granted to the defendant and Wu Yujin in accordance with the terms of the Will.

(b)  If Wu Yujin confirms that he is not willing to be appointed as an executor of the Will together with the defendant, an order that the Will be pronounced in the solemn form and probate of the estate of the Deceased be granted to the defendant in accordance with the terms of the Will.

110.  Just to avoid any doubt, the Will I refer to in the preceding paragraph is the first two pages of the 2014 Will a copy of which is at Annex I hereto.

111.  As to costs, I make an order nisi that the plaintiff is to pay the costs of this action and the counterclaim, including all reserved costs (if any), to the defendant, to be taxed if not agreed. 

112.  I thank counsel for their assistance.

Annex I & II

Annex III