LAM WAI LIK ERIC AND OTHERS v. TAM SUET MUI

CACV 10/2021, [2023] HKCA 1289

On Appeal From [2020] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 10 OF 2021

(ON APPEAL FROM HCAP NO 5 OF 2015)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  This is the appeal of the defendant (“Madam Tam”) from the Judgment of Wilson Chan J (“the judge”) given on 14 December 2020 (“the Judgment”)[1] regarding the estate of Lam Chok Wai, deceased (“the Deceased”), who died on 21 November 2005, aged 60.

2.1.  The plaintiffs are the beneficiaries under a will made by the Deceased in 1987 (“the 1987 Will”). It was prepared by solicitors, and the names of a solicitor and an articled clerk appear as witnesses.

2.2.  Madam Tam is the sole beneficiary under two wills made in 1999 and 2005 (“the 1999 Will” and “the 2005 Will” respectively). The circumstances surrounding the execution of these wills (in particular, the 1999 Will) will be discussed below.

3.  The trial lasted 18 days. Two of the major issues were the Deceased’s testamentary capacity to make the 1999 Will and the 2005 Will. During the trial, a number of witnesses gave evidence including 4 doctors, 2 of whom viz. Dr Lee Man Kong (“Dr Lee”) and Dr Yu Yuk Ling (“Dr Yu”) had treated the Deceased during his lifetime. The other 2 doctors were psychiatrists, viz. Dr Chung See Yuen (“Dr Chung”) and Dr Benjamin Lai (“Dr Lai”).

4.  The judge’s orders are set out in §37.1 below. There is no appeal from his finding of the invalidity of the 2005 Will.

The Deceased

5.1.  The Deceased was born in 1945. His father was the founder of Tai Lin Radio Service Ltd, a successful electrical appliances company (“Tai Lin”)[2]. The father acquired a number of properties with profits made from Tai Lin. He died when the Deceased was about 18 years old. The Deceased then operated Tai Lin with the help of members of the family.

5.2.  The shares of Tai Lin were owned by the Deceased, his younger brother (“the brother”) and their mother. Tai Lin was successful until the late 1990's when it began to suffer losses. The Deceased resigned as a director on 21 August 1998[3], after the brother had returned from overseas to take over the running of Tai Lin. The Deceased did not work thereafter.

Relationships

6.1.  In 1974, the Deceased married the 2^nd plaintiff (“the Wife”). There were born to the Deceased and the Wife, Eric (the 1^st plaintiff) who was born in 1976, and Kenneth (the 3^rd plaintiff) who was born in 1978. (For convenience, Eric and Kenneth are referred to collectively as “the 2 Sons”).

6.2.  In the mid-1980’s, the Deceased began an extra-marital relationship with Madam Tam. There were born to the Deceased and Madam Tam 3 children, born in 1987, 1989, and 1996 respectively.

7.  In 1994, the Wife commenced proceedings for divorce in DJ6670/1994. A Consent Order annexing a Deed of Settlement (“the Deed of Settlement”)[4] was made on 27 July 1995. Although a decree nisi was granted the same day, no decree absolute was granted during the Deceased’s lifetime because he remained in default of payment of a sum of $29 million, being the balance of the lump sum due to the Wife under the Deed of Settlement.

The Deceased’s strokes and medical condition

8.  In view of the arguments on appeal, it is necessary to set out in some detail the evidence relating to the strokes suffered by the Deceased and his medical condition.

1995 Stroke

9.1.  On 23 August 1995, the Deceased suffered his 1^st stroke (“the 1995 Stroke”). The cause of this stroke was a cerebral haemorrhage. He was admitted to Queen Elizabeth Hospital (“QEH”) where he was treated by his friend Dr Lee who was a neurosurgeon.

9.2.  The Deceased was hospitalised for at least two weeks, although Dr Lee was under the impression that he was hospitalised for about 1 month in all[5]. (The medical records from QEH relating to the 1995 Stroke were produced at the trial[6], but there was no discharge summary).

1999 Stroke

10.1.  About 8 months after the Deceased ceased to be a director of Tai Lin, on 5 April 1999, the Deceased suffered his 2^nd stroke (“the 1999 Stroke”). The cause of this stroke was a cerebral infarct, i.e. “death of brain tissue due to blockage of a blood vessel”[7]. He was admitted to QEH again and was treated by Dr Lee and his team. The Deceased was hospitalised for a week.

10.2.  In Dr Lee’s witness statement[8], he adopted parts of a report made by Dr Yu dated 13 July 2015 (“Dr Yu’s 2015 Report”)[9], including the following:

“In April 1999, the Deceased was admitted to QEH for a second episode of stroke. The Deceased presented with right hemiparesis and dysarthria[10]. MRI brain and MR angiogram (MRA) on 15^th April 1999 revealed a lacunar infarct at the left pons, ischaemic[11] changes in the peri-ventricular region, features of the previous basal ganglia haemorrhage, and decrease in the number of left middle cerebral artery cortical branches. While there was near complete recovery of his speech and limb functions, impairment in his higher mental functions became more marked”. (Emphasis added).

10.3.  The impact of the 2^nd stroke (which preceded the 1999 Will) on the Deceased’s mental condition was a significant issue at the trial and on appeal.

11.1.  The medical records from QEH relating to the 1999 Stroke were produced at the trial[12]. The discharge summary on 12 April 1999 stated “Slurring speech and Rt limbs weakness improved gradually”. It did not specifically mention the Deceased’s mental functions.

11.2.  At trial, Dr Lee and Dr Yu were questioned about the absence of specific mention of the Deceased’s mental functions in the QEH discharge summary.

-  Dr Lee said that it could have been omitted as the discharge summary was written up only by junior doctors. However by the time of trial, he could not remember what was the situation with the Deceased’s mental functions due to the passage of time[13].

-  Dr Yu said that “this was a clinical management of patient with stroke, and so the document [the discharge summary] may not go into a detailed examination or examination of the high mental functions” and that “it is of course good practice to have this information in, for let’s say normal mental function, and so on. But if it’s not, I do not think this is below standard”[14].

Dr Lee’s assessment in June 1999

12.1.  On 25 June 1999, about 10 weeks after his discharge from hospital after the 2^nd stroke, the Deceased applied to Sun Life Assurance Co of Canada (“Sun Life”)[15] for a waiver of premium, on the ground of “total disability”.

12.2.  Sun Life’s service agent[16] filled in a form entitled “Total Disability Claim” (“the Disability Claim form”) with information supplied by Madam Tam. It was signed by the Deceased as claimant.

12.3.  The “Claimant’s Statement” in the Disability Claim form included the following:

-  the first symptoms of his illness appeared on 23 August 1995 (the date of the 1995 Stroke);

-  he has been so disabled by this disability as to be prevented from performing any work for compensation or profit or from following any gainful occupation since 1998;

-  such disability has existed continuously to present date;

-  to the question on his present state of health and description of how his condition prevents him from working, the answer was “memory system damaged, unable to deal with original work”[17] (emphasis added); Dr Lee said in his witness statement that this answer was “written down pursuant to my consultation and assessment on the Deceased”[18];

-  he (the Deceased) did not expect to be able to resume work, either full or part-time.

12.4.  In connection with the claim of total disability, Dr Lee filled in a document entitled “Attending Physician’s Statement of Disability” dated 3 August 1999 (“the Physician’s Statement”), which included the following information and answers:

(2)  Diagnosis

(a)  Diagnosis: Bilateral Intracerebral Haemorrhage, Cerebrovascular Disease

(c)  Subjective symptoms: Dysphasia[19] and Right Hemiparesis

(d)  Objective findings: MRI Brain Scan showed bilateral[20] internal capsule infarcts.

(8)  Mental/Nervous Impairment:

-  Class 3 - Patient is able to engage in only limited stress situations and engage in only limited interpersonal relations (moderate limitations).

-  Do you believe the patient is competent to endorse cheques and direct the use of the proceeds thereof?  Yes.

12.5.  Pausing here, in connection with the answer to the last question, Dr Lee said that he had directly asked the Deceased this question, and believed he was able to give “a simple and direct answer, which does not require any sophisticated cognitive function and reasoning”[21] (emphasis added). The Physician’s Statement continued as follows.

(9)	Prognosis
		Patient’s Job	Any Other Work
(a)	Is patient now totally incapacitated?	Yes	Yes
(c)	When do you expect patient will recover sufficiently to resume work?	Never	Never
(10)	Rehabilitation:
(a)	Is patient a suitable candidate for trial employment?	No	No
(d)	Explanation: “Patient suffered from cerebrovascular disease with residual neurological deficits. He would not be able to manage and run a large company”.

12.6.  In connection with the above, the following is notable.

(1)  Dr Lee said he wrote his answers at (9) and (10) after conducting an assessment of the Deceased. His usual and standard practice for such assessment was to refer to the patient’s medical history and records, and exchange dialogue and interactions with the patient, including asking him to do “simple subtractions (eg 100 -7 =?)” [“the Serial 7 test”][22].

  The Serial 7 test is part of the Mini Mental State Examination (“MMSE”). Failing the Serial 7 test meant that, even if the patient passed all the other parts of the MMSE, “it is very likely that he will have a score suggestive of intellectual and memory impairment”[23] and that “it is very likely that he is suffering from moderate to severe intellectual impairment”[24].

(2)  In his oral testimony at trial, Dr Lee added:

-  the Deceased was also 100% incapacitated from doing “any other work”[25];

-  the Deceased “could perhaps” work in a shop[26];

-  the purpose of the Disability Claim form was to enable the Deceased to claim insurance as he could no longer run Tai Lin[27]; but

-  a person who was unable to give an answer to “100 – 7” might not be able to run a small company either[28].

12.7.  This was the last medical assessment of the Deceased’s condition before he made the 1999 Will. However, subsequent medical reports of the Deceased also threw light on his condition at the relevant time in 1999.

Dr Yu’s assessment in 2000

13.1.  In February 2000, the Deceased started to consult Dr Yu, a specialist in neurology in private practice, for management of his stroke. Dr Yu made handwritten notes after each consultation.

13.2.  In Dr Yu’s notes of the Deceased’s first visit (21 February 2000), he assessed the Deceased’s “mentation” (meaning cognitive function)[29] as “slow”[30], but there was “no obvious dysphasia”.

13.3.  In order to discover the underlying cause of the Deceased’s strokes so that he could provide effective preventive therapies[31], Dr Yu admitted the Deceased to the Hong Kong Sanatorium and Hospital (“HKSH”) for investigations and obtained the following materials:

-  an MRI brain scan done on 24 February 2000 (“the February 2000 brain scan”)[32], and

-  CT/MRI brain films and other medical records of the Deceased at QEH[33], which Dr Yu asked Dr Lee for and received on 26 February 2000[34].

13.4.  About a couple of weeks afterwards, on 15 March 2000, Dr Yu saw the Deceased again. Dr Yu noted that the Deceased was quicker than on the last visit, but he could not perform the Serial 7 test[35], which was “to test one’s concentration” and “also the ability to calculate”[36].

13.5.  The following day, on 16 March 2000 Dr Yu wrote a medical report (“Dr Yu’s 2000 Report”)[37] for purposes of medical management[38].

13.6.  After referring to the 1995 Stroke and the 1999 Stroke, Dr Yu wrote in the 2000 Report:

“While there has been near complete recovery of his speech and limb functions, there has been impairment in his higher mental functions more marked recently”. (Emphasis added).

13.7.  It would also be noted that in §4 of Dr Yu’s 2015 Report, when describing the Deceased’s condition in April 1999 (the 2^nd stroke), he wrote:

“While there was near complete recovery of his speech and limb functions, impairment in his higher mental functions became more marked”. (Emphasis added).

13.8.  One of the issues between the parties on appeal was whether, in light of §4 of Dr Yu’s 2015 Report when he was chronicling the Deceased’s condition in April 1999, there was already impairment in the Deceased’s higher mental functions in 1999.

13.9.  The following is the relevant evidence from Dr Yu under cross-examination (emphasis added):

[After Mr Albert Yau, Madam Tam’s counsel, referred to Dr Yu’s 2000 Report] -

“Q. Can I ask you, Doctor, you mentioned about higher mental functions previously, and can you tell us what you meant by ‘higher mental functions’?

A: Okay. The report was written on 16 March [2000], and at the first consultation I noted that he was mentally slow. That is in February [2000]. Then, on 15 March 2000, he could not do the serial 7 calculation ... That is the basis for my statement that there was impairment in his higher mental functions more marked recently.

Remember the context that he was the person in charge of a big electrical appliances company and if he could not perform the serial 7, that would mean an impairment in his higher mental functions”[39].

“COURT: ... You said that there was an impairment of his higher mental functions, in the context of a person in charge of a big electrical appliances company. Does it mean that if he were not in charge of a big electrical appliances company, in other words say a retired person or a person who is unemployed, you would not say that there was an impairment to his higher mental function? In other words, I’m trying to understand why do you say it is in the context of a successful businessman.

A: Okay. Thank you. If I may clarify my statement.

COURT: Yes.

A: Now, even a person who has primary education, let’s say primary 6, would be able to perform the serial 7 test with accuracy. So if a person in charge of this big electrical appliances company, if he cannot do this, that would indicate that there is a significant impairment of his higher mental functions. It’s just a matter of degree.

COURT: So when you say ‘in the context’, what you mean is that bearing in mind that he is a person who can run a large company, the fact that he can’t do the serial 7 test must mean that there had been an impairment of his higher mental capacity?

A: Yes.

COURT: Or higher mental functions; that’s what you meant?

A: Yes”.[40]

[After Mr Yau referred to §4 of Dr Yu’s 2015 Report]

“Q: Now, you mentioned, the last three lines:

‘While there was near complete recovery of his speech and limb functions, impairment in his higher mental functions became more marked.’

Now, you have been taken to the discharge summary. These words are not found there.

A: No.

Q: Thank you. And we have checked very carefully where these words first appear. It is in your report ... [Dr Yu’s 2000 Report]. That’s where you report – that’s where this ‘higher mental functions more marked recently’ first appeared ...

A: Yes.

Q: Now, can I ask you, when you refer to ‘impairment in his higher mental functions’, that was what you observed after you have seen [the Deceased]; is it the case?

A. Yes.

Q. It was not meant to be the observation or the diagnosis of the doctors after the 1999 stroke. It was not meant to be the observation of QEH as to the stroke in 1999.

A: It was not in the discharge summary. I cannot remember whether I had sight of the QEH medical records of that admission”[41].

(Emphasis added).

14.1.  It would be noted from the above that although Dr Yu agreed that:

-  the words “impairment in higher mental functions” first appeared in the 2000 Report and

-  the words “more marked recently” referred to the Deceased’s condition between the 2 consultations in February and March 2000,

Mr Yau did not[42] specifically challenge Dr Yu on his opinion that “impairment in his higher mental functions became more marked” in §4 of the 2015 Report when he chronicled the Deceased’s condition in April 1999.

14.2.  Although Dr Yu agreed that there was an absence of reference to mental functions in the QEH discharge summary, it was not put to him that therefore Dr Yu had no basis for his opinion that the Deceased was impaired in his higher mental functions in 1999.

15.  Coming back to the narrative of events, after the investigations at HKSH, on 10 April 2000 and 8 November 2000, Dr Yu saw the Deceased again. The Deceased could not perform the Serial 7 test on either of those visits. On the April visit, he gave “103” as the answer to “100 – 7”, and on the November visit, he did not know the answer at all[43].

16.  Thereafter, the Deceased suffered further strokes. As Madam Tam has not appealed the judge’s finding of invalidity of the 2005 Will, the evidence of the Deceased’s mental condition is summarised below only for completeness or for any references which may be pertinent to his condition at the time of the 1999 Will.

2000 Stroke

17.1.  On 5 December 2000, the Deceased was admitted to QEH again because of weakness of the left limb[44]. Dr Yu was of the opinion that the Deceased either had a 3^rd stroke (“the 2000 Stroke”) due to cerebral infarct, or a psychogenic disturbance. At QEH, the Deceased was prescribed medicines which included a drug for dementia[45].

17.2.  On 13 December 2000, Dr Yu wrote in a letter addressed to “whom it may concern” that[46]:

“[The Deceased] suffers from repeated strokes and as a result has impaired higher mental functions. His ability to handle financial matters and documents has been substantially compromised”.

2001 Physician’s Statement

18.  On 15 May 2001, Dr Yu filled in a Physician’s Statement for Sun Life stating that the Deceased’s symptoms included “mental slowing” and dysphasia[47]. He did not consider that the Deceased was competent to endorse cheques and direct the use of the proceeds thereof.

2001 Stroke

19.1.  On 21 September 2001, the Deceased had a 4^th stroke (“the 2001 Stroke”). He was admitted to HKSH where he was hospitalized for a week, and further investigations, including MRI and MRA of the brain, were done.

19.2.  On 22 September 2001, Dr Yu wrote a medical report[48] recounting the history of the Deceased’s previous strokes which also stated:

“[The Deceased] informed me that he had to attend court on 24^th September 2001. I have explained to him that because of the acute stroke, he is at present not medically fit to do so, and that he should apply for 6- to 8-week postponement of the court proceedings. I have also advised him that in view of his higher mental dysfunction, it may not be in his best interest to appear in court without legal representation”.

19.3.  The Deceased’s last consultation with Dr Yu was on 2 November 2001. Dr Yu noted that his “mentation and neurological status remained unchanged”[49].

20.  There is then an absence of medical evidence for some 4 years. According to Madam Tam, she arranged for the Deceased to stay on the Mainland in 2002 as she and her children emigrated to Canada[50].

Condition in 2005

21.  The next available medical records were dated February to November 2005[51] from the Hospital Authority (“HA”). The records stated that the Deceased was an “OAHR” (old aged home resident), he was in and out of HA hospitals and he was “non-communicable”. That was the last medical record before his 2005 Will. He died on 21 November 2005, with the cause of death stated as sepsis and multiple bed sores[52].

Psychiatric evidence

22.  As mentioned earlier, 2 psychiatrists gave evidence at the trial, Dr Chung for the plaintiffs and Dr Lai for Madam Tam. Neither had seen the Deceased during his lifetime.

23.  Dr Chung said in his expert report filed on 26 November 2015 that the result of the HKSH brain scan in February 2000 (after the 1999 Will, but before the 3^rd stroke) “suggests that the impairment of higher mental function is directly caused by the brain pathology”[53]. The scan showed “the presence of haemorrhagic infarcts and extensive ischaemic changes in the brain. The Deceased would suffer from intellectual and memory impairment caused by the brain pathology”[54].

24.1.  Dr Lai stated his opinion in an expert report filed on 10 March 2016 that the Deceased “had the mental abilities required in testamentary capacity to execute the will on 13 August 1999”[55]. However, it is notable that before expressing this opinion, Dr Lai had made the following statement:

“According to your instruction letter [from Madam Tam’s solicitors], a person having testamentary capacity is one that

(i) did understand the effect of his wishes under the will,

(ii) did understand the extent of property disposed thereunder, &

(iii) did recall the beneficiary named in the will and comprehend his relationship with that person”.

24.2.  The “instruction” at (iii) appears to be incorrect if it purports to state the 3^rd criterion of Banks v Goodfellow[56]. When informed of the 3^rd Banks v Goodfellow criterion at trial, Dr Lai accepted that when he wrote the report, he “did not know that he [the Deceased] had children that he needed to supply”[57].

24.3.  Dr Lai said that the HKSH brain scan indicated that “the underlying cause of impairment of cognitive function of [the Deceased] is likely a result of the previous cerebrovascular accidents and ischaemic changes”, and that the impairment “depends on the specific sites of the brain affected, and deficits in cognitive function are unevenly distributed with some functions affected and others relatively spared”. However, there was no analysis (by reference to the specific sites of the brain affected) of the distribution of deficits in cognitive function, or which of the Deceased’s mental functions had been affected or how.

24.4.  Further, at trial, Dr Lai’s evidence was as follows:

“COURT: May I attempt to formulate the question. If I am wrong, please let me know.

The proposition put to you, Dr Lai, is that unless you ask direct questions, as set out in paragraphs 45(1), (2) and (3) in the case [Banks v Goodfellow] – unless you ask those questions directly, all other questions designed to enable one to answer the three questions directly, purely by looking at the medical history and his medical records, you cannot come to a view on his mental capacity to make a will as defined in that case? Is that the question?

Do you understand the question, Dr Lai?

A: Yes, I understand your question. Thank you.

You see, as far as from psychiatric aspects are concerned, what I had tried to do is to indicate the mental abilities he had based on the available medical records. The absence of answers to these questions or absence of such questions, however, leaves the issue whether he did have an answer but he was not asked.

So I really do not know – well, this is not in an ideal situation.

Q: No, of course.

A: So I must say this.

Q: You cannot answer, is that it?

A: Yes”[58].

Financial affairs

25.  The Deceased’s financial affairs were complicated.

-  Deed of Settlement

26.1.  After the Wife petitioned for divorce from the Deceased in 1994, they entered into a Deed of Settlement on 27 July 1995. Under the Deed[59],

-  the Deceased agreed to pay the Wife for her sole benefit[60]a lump sum of $39 million, to be paid as to $5 million forthwith, $8 million within one month of the grant of the decree nisi, $13 million by 30 June 1996 and $13 million by 30 June 1997, secured by a pledge of the Deceased’s shares in Tai Lin and in Failand Ltd (“Failand”), a family property-holding company;

-  the actual care and control of the 2 Sons was granted to the Deceased;

-  the Deceased was solely responsible for the maintenance of the 2 Sons until they attained the age of 21 or finished full-time education up to first degree level, whichever was the later. (It was common ground that the Deceased had wanted the 2 Sons to be well-educated).

26.2.  However, the Deceased only paid $10 million to the Wife and failed to pay her the balance of $29 million.

26.3.  After the Wife issued a judgment summons on 10 August 2001, the Deceased, acting through solicitors, applied to vary the Consent Order. In a supporting affirmation made on 7 February 2002, he referred to his “limited functional capacity” by reason of his illness. His application was rejected by the Court on 5 June 2002. Nevertheless, the Deceased continued to be in default and never paid the balance of $29 million.

26.4.  Pausing here, it is notable that in the Deceased’s said affirmation, he said that the Wife had never maintained the 2 Sons. He said it was he who had “always provided maintenance for the two children, including, but not limited, to payment of all school fees”[61]. This is relevant to an issue in the appeal[62].

- Properties co-owned with brother and mother

27.1.  Apart from being shareholders of Tai Lin and Failand, the Deceased and the brother had since the late 1970’s to early 1980’s been the registered owners as tenants-in-common of a number of properties. However, before 1999, they were locked in disagreement as to the use of the properties. Further, the mother claimed to have an equal interest in the properties, a claim which the brother supported.

27.2.  The issue had not been resolved by the time of the 1999 Will. Suffice to say that the Deceased had inconsistent positions at various times in proceedings against the brother and their mother.

28.  Since Madam Tam has not appealed the judge’s finding of invalidity of the 2005 Will, it would not be necessary to recount further events relating to the Deceased’s financial affairs.

-  Bankruptcy

29.1.  We would however record that a bankruptcy order was made against the Deceased in 2003. The Official Receiver (“OR”) is the trustee in bankruptcy.

29.2.  At the commencement of this appeal, the court inquired about the OR’s position. Suffice it to say that the court was eventually provided with a letter dated 16 September 2021 from the OR to another firm of solicitors, to the effect that to that date, all provable debts of the Deceased including statutory interest had been fully settled, and that pending the outcome of the probate action, all the remaining assets including those not yet realised[63], will be passed to the personal representative. The letter also stated that the OR remained the trustee-in-bankruptcy and noted that the Deceased’s interest in one property was subject to a charging order.

29.3.  As the OR wished to be kept informed of the development of these proceedings, we direct that the appellant’s solicitors provide the OR with a copy of this Judgment within 48 hours after handing down.

30.  It is against the backdrop of the Deceased’s personal circumstances, his medical condition and his financial affairs as summarized above, that the court has to consider the issues in these proceedings concerning the Deceased’s Wills.

Wills

-  The 1987 Will

31.1.  In 1987 (about 4 months after Madam Tam gave birth to her first child by the Deceased), the Deceased made a Will (“the 1987 Will”)[64] in which he appointed the Wife (and whichever trustee company she should in her full discretion appoint) his executors and trustees, and gave his estate to the Wife and the 2 Sons in equal shares.

31.2.  According to the Wife’s witness statement[65], the Deceased told her about his affair with Madam Tam and said he felt ashamed. She said that at that time her relationship with the Deceased was good. The Deceased came home one night in August[66] 1987 with an envelope, and told her that he had gone to MK Lam & Co (the solicitors’ firm which prepared the 1987 Will), and made a will giving all his estate to her and the 2 Sons. The Deceased told her that he wanted to ease his mind just in case any accident happened to him. He then gave the 1987 Will to her and reminded her to put it in a safe deposit box at a bank.

31.3.  In light of one of the grounds of appeal[67], it is necessary to recount the evidence thereafter. The Wife said in her witness statement that after she took a look at the contents of the 1987 Will on the night that the Deceased gave it to her, she put it in a safe deposit box at the Hang Seng Bank (“the safe deposit box”) a few days later.

31.4.  Subsequently, on 7 May 2015, Eric made an affirmation of testamentary script producing the Will which he said “is in my possession and control” which was then lodged with the Registry.

31.5.  After the hearing of the appeal, on 30 May 2023, the Wife and Eric each filed an affirmation.

31.6.  In the Wife’s affirmation, she said that she had always kept the 1987 Will in the safe deposit box, except for an occasion in 2010, when she took it to her solicitors in the divorce proceedings for photocopies to be made. In 2011, she added Kenneth as an authorized person for the safe deposit box. In 2014, her other son Eric applied for legal aid and commenced the probate action. She told him that if he wished to have the original 1987 Will, she or Kenneth would take it out of the safe deposit box for him. As such, she considered that all 3 of them had possession, custody and control of the 1987 Will (prior to it being lodged in the Registry).

31.7.  In Eric’s affirmation, he confirmed the contents of the Wife’s affirmation to explain why he had earlier deposed that he had possession, custody and control of the 1987 Will (although he added that he did not in fact need to take the original out for the legal aid application in 2014, as the Wife had given him a photocopy made at the abovementioned solicitors’ office). He confirmed that the 1987 Will has been lodged in the Registry.

31.8.  Submissions were made by both parties on these new affirmations which will be discussed below[68].

-  The 1999 Will

32.1.  On 13 August 1999, about 4 months after the Deceased suffered his 2^nd stroke, the Deceased signed another Will (“the 1999 Will”)[69] in which he appointed Madam Tam his executrix and made her the sole beneficiary.

32.2.  The 1999 Will was attested by Kam Hung Ming (“Mr Kam”) a solicitor and Francis CF Kung, a legal clerk. The circumstances in which the 1999 Will was made will be discussed later. The original 1999 Will was given to the Deceased.

32.3.  As a matter of completeness, in 2001, the original 1999 Will was given to Ringo Ho (“Mr Ho”) a solicitor with another firm who was acting for Madam Tam’s BVI companies in litigation against the Deceased (where orders were eventually set aside[70]). However, Mr Ho lost the original 1999 Will, and did not find it until 2018.

-  The 2005 Will

33.  Madam Tam said that since Mr Ho had lost the 1999 Will, she and the Deceased thought it would be better for another will to be made. On 18 August 2005, the Deceased purportedly made the 2005 Will[71] containing the same contents as the 1999 Will. It was prepared by the same solicitor Mr Kam, who attended the Deceased (who was not able to communicate) at an old aged residents home. The Deceased’s thumb print and a cross mark appeared on the document. The Deceased died about 3 months later. The judge’s finding of invalidity of this Will is not the subject of appeal.

Proceedings

34.1.  In HCAP No.5 of 2015, the plaintiffs claimed (among other things):

(1)  a declaration that the 1999 Will and/or the 2005 Will be declared void and of no legal effect, and

(2)  the 1987 Will be proved in solemn form.

34.2.  In Madam Tam’s Re-Re-Re Amended Defence and Counterclaim (“Re-re-re Amd D &CC”),

-  she did not admit that the Deceased had made the 1987 Will[72]; and

-  counterclaimed (among other things) for declarations that:

(a)  the 1987 Will had been revoked,

(b)  the 2005 Will was valid and enforceable, and should be admitted to probate; and

(c)  (if the court were to find that the Deceased did not have the necessary mental capacity to execute the 2005 Will), the 1999 Will was valid and enforceable, and should be admitted to probate.

35.  In the Judgment, the judge listed the following issues of fact:

(1)  in respect of the 1999 Will,

(a)  whether the signatures thereon had been made by the Deceased, and the age of the ink;

(b)  whether the Deceased had testamentary capacity to make this will;

(c)  whether the Deceased had knowledge and approval of its contents;

(2)  in respect of the 2005 Will,

(a)  whether the Deceased had testamentary capacity to make this will;

(b)  whether the Deceased had knowledge and approval of its contents.

The judge’s Judgment

36.1.  Essentially, the judge found in respect of the 1999 Will that it was genuine[73] (i.e. it had been signed by the Deceased at that time), but that he did not have the requisite testamentary capacity[74]. As such, it was not necessary for the judge to consider if Madam Tam had proved the Deceased’s knowledge and approval of the same[75].

36.2.  The judge based his finding of lack of testamentary capacity on the evidence of the Deceased’s mental condition listed in §125(2) of the Judgment, including the medical records relevant to the 1999 Stroke, the Disability Claim form, Dr Lee’s Physician’s Statement as supplemented by his oral evidence, and the fact that in the summer of 1999, the Deceased was unable to discern 3 separate and repeated requests from Kenneth for payment of his university fees.

36.3.  The judge also took into account the fact that Mr Kam was not informed about the Deceased’s illness, and had admittedly[76] not asked the Deceased, questions relevant to ascertaining the Deceased’s testamentary capacity by reference to:

(1)  whether he was capable of understanding the nature of the act of making the 1999 Will and its effects;

(2)  whether he was capable of understanding the extent of his property which he was disposing of; and

(3)  whether he was able to comprehend and appreciate the claims to which he ought to give effect

(as per Banks v Goodfellow).

36.4.  The judge concluded, with reference to e.g. the effect of the 1999 Will on the 2 Sons, and the complex interests of the Deceased in various assets, that the 3 criteria had not been satisfied, noting that the Deceased was unable to pass the Serial 7 test, and that Dr Chung’s evidence was that the questions regarding the 3 criteria were “much more difficult” than those in the MMSE of which the Serial 7 test was one.

36.5.  As for the 2005 Will, the judge found that in addition to the lack of testamentary capacity[77], Madam Tam had failed to establish the Deceased’s knowledge and approval[78].

36.6.  Having thus disposed of Madam Tam’s case regarding the 1999 Will and the 2005 Will, the judge pronounced for the validity of the 1987 Will on the basis that Madam Tam had not challenged its formal or substantial validity[79].

The judge’s Order

37.1.  The judge:

(1)  pronounced for the 1987 Will,

(2)  dismissed Madam Tam’s counterclaim, and

(3)  made a costs order nisi that Madam Tam shall pay the plaintiffs’ costs of the action.

37.2.  In relation to the costs order, Madam Tam filed a summons on 31 December 2020 to vary the costs order nisi. The plaintiffs then filed a summons on 4 January 2021 to clarify or alternatively to vary the costs order nisi.

Appeal

38.  On 11 January 2021, Madam Tam lodged a Notice of Appeal. On 1 February 2021, the plaintiffs filed a Respondent’s Notice. This will be referred to as “the substantive appeal”.

39.  There are 3 subsequent matters which we would mention here first.

40.1.  First, the judge handed down his Decision on the applications to vary the costs order nisi on 28 April 2023. The only variation was that costs to the plaintiffs were to be taxed on the basis of certificate for 2 counsel, with legal aid taxation for a specified period of time.

40.2.  On 15 May 2023, the eve of the hearing of this appeal, Madam Tam filed a summons for leave to file a Supplementary Notice of Appeal in relation to costs. This will be referred to as “the proposed costs appeal”.

40.3.  At the commencement of the hearing of the substantive appeal, as the parties had not filed submissions relating to this summons, we indicated that directions would be given in this Judgment in relation to the proposed costs appeal.

41.1.  Second, on the issue of possession custody and control of the 1987 Will, the plaintiffs’ counsel asked at the hearing of the appeal for leave for the Wife and Eric to each file an affirmation within 14 days, simply to prove the chain of custody. The court indicated that it would consider the affirmations de bene esse.

41.2.  On 30 May 2023, the Wife and Eric each filed an affirmation relating to the above[80]. The parties then filed submissions on 5 June 2023 and 12 June 2023 which will be discussed later in this Judgment[81].

42.1.  Third, on 16 June 2023, Madam Tam filed a summons for leave to amend her notice of appeal to add a ground that the judge had extensively copied the plaintiffs’ closing submissions on the issue of the Deceased’s testamentary capacity. Written submissions were filed in July and August 2023.

42.2.  For reasons set out in a Judgment[82] handed down on 15 September 2023, this court dismissed the summons with costs. In any event, we have examined the materials in the case in considerable detail.

Discussion on the substantive appeal

43.  Mr Yau’s principal argument was that “with the presumption of capacity and given that knowledge and approval have been proved, the 1999 will should be admitted to probate without the need to examine if the Banks v Goodfellow criteria are met”[83].

44.  We consider this argument is wrong for a number of reasons.

45.1.  First, regarding the “presumption of capacity”, Mr Yau sought to take a “preliminary point” that the presumption was not displaced by the evidence adduced by the plaintiffs. Mr Yau referred to a passage (§34.34) in the 31^st edition of Tristram & Coote’s Probate Practice, which is now (as revised) §34.41 of the 32^nd edition of that work (published in 2020).

45.2.  The passage now reads as follows:

“The law as to the burden of proof was summarised in Ledger v Wootton [2007] EWHC 90 (Ch) as: (a) the burden is on the propounder of the will to establish capacity; (b) this remains the case even if the propounder has already obtained a grant in common form; (c) where a will is duly executed and appears rational on its face, then the court will presume capacity; (d) an evidential burden then lies on the objector to raise a real doubt about capacity; (e) once a real doubt arises there is a positive burden on the propounder to establish capacity. The modern approach is to address the question of capacity as an evaluation of all the evidence available to the court at trial: Burns (Deceased) Re [2016] EWCA Civ 37, 18 ITELR 706 followed in Goss-Custard v Templeman [2020] EWHC 632 (Ch)”.

46.1.  We do not think that the court could stop at step (c), the “presumption of capacity”, in this case. This is not a case where the only evidence before the court was evidence of due execution and an apparently rational will.

46.2.  There is before the court considerable medical evidence relating to the Deceased’s mental condition at the time of the 1999 Will (13 August 1999), in particular evidence of the April 1999 stroke, and in particular,

-  the Disability Claim form on 25 June 1999 stating “memory system damaged”, which Dr Lee said was “written down pursuant to my consultation and assessment on the Deceased”[84];

-  Dr Lee’s Physician’s Statement on 3 August 1999 which referred to the QEH MRI Brain Scan showing infarcts (death of brain tissue), and his assessment (after referring to the patient’s medical history and records, and exchange of dialogue and interactions, including the Serial 7 test) that the Deceased was 100% incapacitated for any work, would never recover sufficiently to resume work, and would not be able to run a company big or small.

47.1.  As mentioned above, Mr Yau challenged Dr Yu’s statement in his 2015 Report that as a result of the 1999 stroke, “while there was near complete recovery of his speech and limb functions, impairment in his higher mental functions became more marked” on the basis that it was not in the QEH discharge summary, and similar words (without “recently”) first appeared in his 2000 Report. Mr Yau argued therefore that the judge was wrong to say that the evidence relating to the 1999 stroke was “indisputable” (§125(b), Judgment).

47.2.  In our view, there is no substance in that argument. The fact that the QEH discharge summary did not refer to impairment in mental functions does not per se contradict Dr Yu’s opinion on the state of the Deceased’s mental condition after the 1999 stroke for reasons given by Dr Lee and Dr Yu[85], and Mr Yau acknowledged that he had not specifically challenged Dr Yu that there was no basis for his use of those words in §4 of the 2015 Report on the Deceased’s condition in April 1999.

47.3.  In fact, Dr Yu was consulted only a few months after the Deceased’s 1999 stroke and he undertook investigations of the underlying cause of the Deceased’s repeated stroke. For that purpose, he had access to all the Deceased’s medical records including MRI brain scans done at QEH and HKSH. He also treated the Deceased until 2001, and MRIs were also performed on the Deceased during this period. Being in a position to track the Deceased’s condition from 1995 to 2001, there is no reason to doubt his statement in the 2015 Report of the Deceased’s condition in April 1999 after the 2^nd stroke.

47.4.  Further, Dr Lee, who was the Deceased’s attending physician in 1999, adopted §§3-5 of Dr Yu’s 2015 Report (including the reference to “impairment in his higher mental functions became more marked” in §4) in his witness statement[86] “as Dr Yu has correctly reported the condition of the Deceased at that time by making reference to those medical notes/records of QEH”[87].

47.5.  Indeed, in §25 of the witness statement, Dr Lee said “between 23 August 1995 and the end of 1999, it was both my impression and my recollection that there was serious damage to the Deceased’s brain ...”. Dr Lee was the treating doctor of the Deceased from 23 August 1995 to “about the end of 1999”, but there were no further medical incidents between the 1999 stroke and the end of 1999. Accordingly, the reference to “serious damage to the Deceased’s brain” would have occurred as a result of the 1999 stroke, and not anything that occurred after the date of the 1999 Will in August 1999.

48.1.  Mr Yau also argued that the evidence from Kenneth that the Deceased forgot to pay his university fees despite prompting a few times did not feature in his pleadings or witness statement.

48.2.  However, the mere fact that this piece of evidence was elicited during cross-examination does not detract from its admissibility or credibility or reliability, and Mr Yau has not explained why that piece of evidence should not be part of the evaluation of all the evidence available to the court.

49.  In the light of all this evidence, it would be wrong if the court simply applied the presumption of capacity.

50.  Second, contrary to Mr Yau’s submissions, knowledge and approval of the 1999 Will have not been proved. The judge did not have to deal with it because of his finding that there was no testamentary capacity. In doing so, he referred to Au Kong Tim where Kwan JA (as she then was) followed Sir Andrew Morritt C’s statement in Perrins v Holland [2011] Ch 270 at [31] that “plainly testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter”.

51.1.  Third, coming to the 3 criteria in Banks v Goodfellow (satisfaction of all 3 being required), the evidence is clear that at least the 2^nd and the 3^rd criteria (and in particular, the 3^rd criterion) were not met in this case of an infirm testator.

51.2.  Importantly, for the 3^rd criterion, the 1999 Will did not provide at all for the 2 Sons who were then still at university, and who were beneficiaries under the 1987 Will.

51.3.  As:

(a)  it was common ground that the Deceased wished his children to be well-educated, and

(b)  under the Consent Order, it was the Deceased (not the Wife) who obtained actual care and control of the 2 Sons and undertook sole responsibility for their maintenance until they finished full-time education up to first degree level[88],

the non-provision for the 2 Sons under the 1999 Will is a very weighty piece of evidence against testamentary capacity.

51.4.  Mr Kam admitted that before preparing the 1999 Will, he did not ask the Deceased how many children he had, or who depended on him for their livelihood, or whether he had made a will previously[89].

52.1.  There was no evidence explaining why the Deceased might have intended not to provide for the 2 Sons in the 1999 Will. Indeed, Mr Yau confirmed that “subsequent events showed that the [the Deceased] did not default in his maintenance of these 2 sons, despite his financial difficulties”[90].

52.2.  Further, Mr Yau submitted that the Deceased’s obligations under the Consent Order to maintain the 2 Sons would not be binding on his estate and would be put to an end upon his death[91]. That is a self-defeating submission, as there would be all the more reason for the Deceased to provide for the 2 Sons in his will.

53.1.  Mr Yau also referred to Madam Tam’s evidence that she owned a number of properties in her name, but she was “not sure” if she was in “negative equity territory” in1999.

53.2.  However, that is not to the point. The issue is not whether there was an “either/or” situation between Madam Tam and the 2 Sons, where the Deceased was compelled to choose between one or the other. Mr Yau’s submissions, which are based on the Deceased having considered how much the 2 Sons needed in the future, ring hollow when one considers the Deceased’s loss of the ability to calculate, as shown by his failure to pass the Serial 7 test.

54.  The question is whether, in light of the medical evidence, the court can be satisfied with the Deceased’s testamentary capacity when he made the 1999 Will in which he had not even mentioned the 2 Sons, let alone made any provision for them. In our view, as in the judge’s, the answer is No.

55.1.  The 2^nd criterion for testamentary capacity is whether the testator was capable of understanding the extent of the property which he was disposing of. As Mr Kam admitted, he never asked the Deceased any questions about it.

55.2.  At the time of the 1999 Will, the Deceased’s financial affairs were complicated. There were disagreements with his brother on the use of co-owned properties and the property-holding family company, and with the brother and their mother on whether she had an equal interest, which would obviously result in the reduction of the Deceased’s interest.

56.1.  Mr Yau submitted that “where the nature of the testator’s assets are [sic] complicated and varied, the court should allow the testator some latitude if he has difficulties describing his assets accurately”[92].

56.2.  However, the point is not whether a testator needed to describe all his assets or had left any out. When the issue is testamentary capacity, obviously the more complicated his financial affairs, the greater intellect would be required to understand what property he had for disposition and distribution. At the time of the 1999 Will, the Deceased’s interest in the properties co-owned with his brother was either ½ (if the mother was excluded) or 1/3 (if the mother was included). Obviously, that would affect the extent of his worth and how it could be distributed. However, the Deceased’s failure to pass the Serial 7 test showed that he lacked, not only concentration, but also the ability to calculate, which clearly would have an impact on relevant considerations such as what property he had, and what would be required for different persons.

57.  For the above reasons, we consider that the finding of invalidity of the 1999 Will should be upheld.

58.  We shall now deal with the ground of appeal relating to the 1987 Will. At the conclusion of the Judgment, the judge pronounced for the validity of the 1987 Will by decreeing probate of it in solemn form[93].

59.1.  The argument advanced on behalf of Madam Tam is that:

(a)  the plaintiffs did not prove due execution as they did not call any attesting witnesses, and

(b)  although the plaintiffs relied on the rule for proving ancient documents, they had not satisfied the proper custody requirement in that rule.

59.2.  In their Respondents’ Notice, the plaintiffs contended that:

(1)  an affirmation of testamentary scripts had been made on 7 May 2015 and the Will lodged in the Registry on 8 May 2015 pursuant to Order 76 rule 5(2) RHC[94];

(2)  on the face of the document, the 1987 Will was regular, and the presumption of due execution applied; no challenges to its formal and/or substantial validity were made by Madam Tam in her pleadings or evidence; and

(3)  the 1987 Will was an ancient document of more than 20 years produced from proper custody and s.43 Evidence Ordinance cap. 6 applied[95].

60.1.  Looking first at the pleadings, the plaintiffs had pleaded the 1987 Will in their Re-Amended Statement of Claim thus:

“4. On 3.9.1987, the Deceased made a formal will (“the 1987 will”) making the 1^st to 3^rd plaintiffs as the only beneficiaries of his estate upon his death. The 1987 will has never been revoked whether by operation of law or otherwise up to the date of his death”.

60.2.  The Re-Re-Re Amd D & CC had pleaded in respect of the 1987 Will:

“5. As to paragraph 4,

(a) the 1^st sentence is not admitted;

(b) the 2^nd sentence is denied. It is specifically denied that the 1987 Will has never been revoked[96]. For reasons pleaded in paragraphs 7, 8[97], 10 and 11[98] below, the 1987 Will has been expressly and/or impliedly revoked by the Deceased and lost all its effect as a testamentary instrument”.

61.1.  There was no pleading from the defendant denying execution or attestation, and no evidence contradicting these acts. On the face of 1987 Will, there is no reason why the presumption of due execution would not apply. There is no authority supporting Mr Yau’s argument that where a party seeks an order that a will is proved in solemn form, this presumption cannot apply[99]. In contested cases where the presumption was successfully applied[100], the will is “pronounced for”, a term used where the claim is for probate in solemn form[101].

61.2.  This presumption is explained in Williams Mortimer and Sunnucks § 9-31 as follows:

“There is no absolute necessity for positive evidence of due execution in order to enable the court to pronounce for a will. The court will take into account the circumstances and judge from them collectively whether or not there was due execution ...

The presumption that everything was properly done (omnia rite et solemniter esse acta) arises whenever a will, regular on the face of it and apparently duly executed, is before the court, and amounts to an inference, in the absence of evidence to the contrary, that the requirements of the statute have been duly complied with”.

61.3.  The presumption does not only apply where the witnesses are dead. It applies even if they are called and give evidence that they do not recall having witnessed the testator’s execution. (Indeed, the strength of the presumption is so strong that it has been held to apply even where a witness testified that he did not intend to attest that he saw the testator sign the will)[102]. Accordingly, the fact that the plaintiffs had not procured witness statements from, or had not called, the witnesses to the 1987 Will (assuming they are alive) does not defeat the presumption. As noted earlier, there was no pleading from the defendant denying execution or attestation, and no evidence contradicting these acts.

62.  And as the judge observed in §179 of the Judgment, Madam Tam had not in her pleadings challenged the formal or substantial validity of the 1987 Will.

63.1.  As we understand it, Mr Yau’s complaint now is of a “lacuna” in the evidence relating to the chain of custody of the 1987 Will from the Mother (to whom the Deceased had given it) to Eric, who had lodged it in the Registry.

63.2.  However, this “chain of custody” point was not argued at trial. There was no cross-examination of the Wife on the custody of the will, and there was no challenge to Eric’s evidence in the affirmation of testamentary scripts or the lodging of it in the Registry. In Mr Yau’s opening submissions at trial, no issue was raised in respect of possession and custody, cf the issue whether witnesses were required to be called to prove due execution (§§11 and 13, Defendant’s Opening Submissions). In his closing submissions, the 1987 Will did not feature at all[103].

63.3.  It may be that Mr Yau’s present complaint came about because the plaintiffs had relied at closing on the rule for proving ancient documents (which applies to wills[104]) which overrides s.42 Evidence Ordinance (this rule was not argued in Chow Siu Po v Wong Ming Fung HCAP3/1998, DHCJ Lam, as he then was). This rule is summarized as follows in Phipson on Evidence §40-36:

“In any proceedings, whether civil or criminal, private documents not less than 20 years old, produced from proper custody, and otherwise free from suspicion, prove themselves, and no evidence of the handwriting, signature, sealing or delivery need, in general, be given. The 20 years date from the execution of the document, and, even in the case of wills, not from the death of the testator. ...” .

In relation to “proper custody”, it is said in Phipson that this means the deposit of the document “with a person[105] and in a place[106] where, if authentic, it might naturally and reasonable be expected to be found. Such a custody is sufficient, although there might be another which would be more strictly and absolutely proper”.

63.4.  Mr Yau accepted that the “lacuna” in the “chain of custody” did not form any part of his written closing submissions at trial, and when counsel for the plaintiffs referred the judge to the rule proving ancient documents, Mr Yau did not advance any argument that it was not applicable for want of evidence as to the chain of custody.

63.5.  Had Mr Yau done so, it would have been open for the Wife and Eric to be recalled to give evidence as per their affirmations filed after the hearing of the appeal.

63.6.  Under these circumstances, we do not consider the rule in Ladd v Marshall[107]applies, given that Mr Yau had not advanced any argument before the judge that the rule proving ancient documents was not applicable for want of evidence as to the chain of custody. It was simply not an issue[108], and a party can only be expected to adduce evidence on matters that are in contention. This is the rationale of the “state of the evidence bar”[109].

63.7.  Having said that, since this is a probate matter where the court has inquisitorial functions, we would give leave to the plaintiffs to adduce the affirmations of the Wife and Eric filed on 30 May 2023 so that there would be no possible doubt on the chain of custody. Whilst these affirmations could have been better drafted, in that there were no details showing when and how the 1987 Will was taken from the safe deposit box for Eric to lodge with the Registry, we consider they are adequate to show how all the plaintiffs had possession, custody and control of it.

Disposition

64.  For the reasons set out above, we would:

(1)  give leave to the plaintiffs to adduce the affirmations of the Wife and Eric filed on 30 May 2023;

(2)  dismiss the substantive appeal with an order nisi that the costs of this appeal be paid by the defendant to the plaintiffs;

(3)  direct that the appellant’s solicitors provide the OR with a copy of this Judgment within 48 hours after handing down; and

(4)  give leave to the parties to file submissions[110] within 14 days of the date of this Judgment on the proposed costs appeal. The matter will then be dealt with on paper.