YUAN REXIANG v. LAU CHUN YING, the proving executrix of the estate of LAU FOO KIM, deceased AND ANOTHER

HCAP 2/2021

[2024] HKCFI 494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 2 OF 2021

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D E C I S I O N

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A.  Introduction

1.  This is the 1^st and 2^nd defendants’ (“Ds”) appeal against the order of a Master dated 4 September 2023 (the “Order”) allowing the plaintiff’s application by summons dated 7 June 2023 (the “Summons”) for leave to adduce expert evidence concerning whether the late Lau Foo Kim (the “Deceased”) had the testamentary capacity when he made and executed his will dated 26 April 2018 (the “Will”).

2.  The Ds seek to set aside the Order on the basis that the expert evidence sought to be adduced is not relevant nor necessary for a fair resolution of the dispute.

B.  Background

3.  The Deceased had 3 marriages, with children born thereto:

1)  From the 1^st marriage, the 2^nd defendant (“D2”) and a daughter was born.

2)  From the 2^nd marriage, the 1^st defendant (“D1”) was born.

3)  Before the 3^rd marriage of the Deceased to the plaintiff (“P”) in May 2004, they had a son out of wedlock in July 2001.

4.  P had lived with the Deceased from 2004 until his demise on 9 September 2018.

5.  The Deceased made the Will in which D1 and D2 were made the executors and the only beneficiaries were D1 and D2.

6.  On the same day the Will was executed, two other documents were signed and executed by the Deceased at Messrs Victor Yeung & Co:

1)  A divorce petition regarding the marriage between the Deceased and P, which was subsequently withdrawn by the Deceased.

2)  A notice of severance purportedly severing the joint tenancy between P and the Deceased in a property in Tsing Lung Tau in Hong Kong.

7.  P passed away on 9 September 2018 and D1 obtained a grant of probate of the Will on 23 August 2019.

8.  It is alleged by P that since the 2010s, the Deceased had developed serious physical illness and had operations performed. He had also suffered from pneumonia. It is further alleged by P that when confronted by P on the divorce petition, the Deceased replied that he did not recall having issued any divorce petition, and could not recall what he had signed at Messrs Victor Yeung & Co or why he went there.

9.  P also alleged to have been the sole provider and caretaker of the Deceased whilst D1 and D2 seldom visited the Deceased, yet the Will made no provision for P and her son.

10.  As such, it is alleged that: a) the Deceased lacked the requisite mental capacity to make the Will, b) the Deceased lacked knowledge and did not approve of the Will, and c) the Will was irrational; and P seeks to have the grant of probate revoked, and an order that P be the person authorized to apply for a grant of letter of administration of the Deceased’s estate instead.

11.  Ds aver that the Deceased had full mental capacity to enter into the Will. Ds allege that the Deceased and P’s relationship had deteriorated which led to the divorce petition. Ds allege that there were cogent reasons why the Deceased decided not to include P and her son as beneficiaries under the Will.

12.  Ds also rely on the fact that the Deceased’s mental capacity in withdrawing the divorce petition was not challenged by P.

13.  It is not disputed that the Deceased’s mental capacity as at the time he made the Will has been put in issue.

C.  Legal principles

14.  The applicable legal principles are trite. An appeal against a master’s decision operates by way of rehearing. The judge treats the matter as though it came before him for the first time. But the judge will give the weight it deserves to the decision of the master, even though he/she is not bound by it. Fresh points may be raised before the judge which were not raised before the master[1].

15.  The principles for application to adduce expert evidence are well-established and have been summarized in Shenzhen Futaihong Precision Industry Co Ltd & Ors v BYD Co Ltd & Ors[2]:

1)  The subject matter of the opinion must fall within an area in which expert evidence may properly be given;

2)  The witness must be qualified as an expert to give the evidence of the type in question;

3)  His evidence must be relevant to the issues being litigated;

4)  The Court will not only examine pleadings, but also the documents and witness statements to determine the true evidential issues in dispute: Shenzhen Futaihong; and

5)  Expert evidence should not be allowed where the question can be determined on factual evidence and inferences to be drawn therefrom.

16.  Merely because expert evidence may be of some assistance to the Court does not mean that it ought to be admitted[3].

17.  The primary aim of a court’s case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties: Fung Chun Man v Hospital Authority[4].

18.  The burden is on the party seeking to rely on expert evidence to show that it is relevant and necessary for the disposal of the issues in dispute.[5]

D.  Discussion

19.  Mr Chu, counsel for Ds contend that for the following reasons, the Summons ought to have been dismissed:

1)  There is insufficient basis for P to allege that the Deceased lack the requisite mental capacity:

a)  P seems to accept that the Deceased was of sound mind when P confronted him in May 2018 on the divorce petition. Similarly, there is also no allegation that the Deceased was mentally incapable of giving instructions to withdraw the divorce petition and subsequently entering into a consent summons for the withdrawal.

b)  P did not challenge the Will when she first had notice of the Will.

c)  The Deceased transferred a taxi (RF 6656) to P and sold his flat in Sai Wan Ho. Yet P has not alleged that these transactions ought to be set aside for want of mental capacity as well.

d)  P, who lived with the Deceased, had not made any affirmation on the mental state of the Deceased herself.

e)  The medical records suggest that in May 2018, a few weeks after the Will was executed, there was no diagnosis of unsound mind by the doctor. On the contrary, the medical notes suggest that the Deceased well understood the doctor at the time.

2)  The expert proposed by P is a psychiatrist and not a neurologist. He specializes in sleep disorders, psychiatry, and psychology.

3)  A psychiatric expert would not be able to retrospectively demonstrate that the Deceased was of unsound mind back in April 2018.

20.  In my view, whether P has sufficient basis to plead lack of mental capacity, or that she seems to have a weak case is not directly relevant to the question of whether expert evidence should be adduced. It goes to the merit of her claim and if Ds are of the view that P’s claim simply does not stand, it will be up to Ds to consider whether they wish to take out any appropriate applications in that regard.

21.  Mr Chan, counsel for P contended that it is relevant and necessary to have psychiatric expert evidence adduced because:

1)  It would be helpful for a psychiatrist (instead of someone not medically qualified) to examine the 1000+ pages of medical documents from the Hospital Authority to opine on the proposed issue.

2)  The Deceased had a Whole Body Radio Therapy and was diagnosed to have brain metastases on 18 April 2018. There was also reference to the Deceased having a “brain met” and a “brain, pleural met”. The expert could opine on to what extent the side effects of treatments would affect the cognitive function of the Deceased.

3)  Analysis on the weight and quality of the evidence should be left to the trial proper.

22.  Applying the relevant tests, I am of the view that the application to adduce expert evidence should be dismissed for the following reasons:

1)  At the relevant time in April 2018, the Deceased was not under the care of any medical professional who was privy to his mental state. Any expert being asked now to give an opinion on the Deceased’s mental state as at 2018 would only be giving his opinion based on circumstantial evidence.

2)  The circumstantial evidence in the present case are the contemporaneous medical records of the Deceased at the time. There is nothing to suggest that the court is unable to decipher what is written on the medical records and reach its own conclusions and to draw necessary inferences.

3)  Whilst P points to some medical notes and references to brain metastases to suggest that it might have impaired the Deceased’s mental state, without any medical record to the effect that there was mental impairment at the time, any opinion on whether such medical condition or the relevant treatments may affect mental capacity is speculatory. As such, such expert evidence is of little assistance, if any, to the court on the relevant issue.

4)  There was no record of any history of mental impairment or states of confusion of the Deceased. Mr Chan relies on the fact that the Deceased had subsequently agreed to withdraw the divorce petition as evidence of his confused state as he had no plan to divorce. However, this submission contradicts the contemporaneous documents (medical notes) which clearly recorded that as at 2018, there were relationship problems between P and the Deceased. The medical note for the consultation dated 17 May 2018 clearly indicated that there was “plan to divorce”.

5)  The cases relied upon by Mr Chan are not cases on whether expert evidence should be adduced, but cases where expert evidence had been directed, and the relevant experts, based on the facts of those particular cases (the subjects of which all had previous psychiatric background) gave their opinion based on circumstantial evidence. Such case law does not support Mr Chan’s contention that expert evidence should be allowed even if there is only circumstantial evidence on a person’s mental state in the past.

6)  In such circumstances, there is very little probative value for an expert to give an opinion on what may or may not have affected the Deceased’s mental state at the relevant time when in fact there is no way for him/her to opine on the actual mental state of the Deceased at the time when he executed the Will. I cannot see how the proposed expert could assist the court in coming to the factual finding of whether the Deceased understood the nature of the Will and its effect at the time when it was executed.

E.  Conclusion

23.  I would therefore respectfully disagree with the Master’s decision and allow the appeal.

24.  On a nisi basis, costs of the Summons and of the appeal should be to Ds with certificate for one counsel. Such costs to be summarily assessed, if not agreed.

25.  I thank counsel for their assistance.