CHAN SAI LUN HENRY v. CHAN WAI WAH LILY-ANN

P2 of 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE DIVISION

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J U D G M E N T

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Introduction

1. Between 6:00 and 7:00 p.m. on 9th January 1990, Chan Kong-chung (I will call him Mr. Chan) executed or allegedly executed his will. By his will, Mr. Chan appointed his elder son, the Plaintiff (whom I will call Henry) as his executor and sole beneficiary. An hour or two after making his will, Mr. Chan was taken ill and admitted to hospital where he died soon after midnight on 13th January. Caveats having been entered by Mr. Chan's younger son, the 1st Defendant (whom I will call Sylvester), and younger daughter, the 2nd Defendant (whom I will call Lily), Henry commenced this action seeking pronouncement for probate of the will in common form.

2. The action has had a chequered history. Sylvester was always unrepresented. Eventually, his defence was struck out and judgment was entered against him. Lily was unrepresented until legal aid was granted to her in May 1997. By that time, Lily had filed a long, rambling defence that contained serious allegations against Henry, even hinting that he had been responsible for Mr. Chan's death. Thanks to the skill and common sense of counsel now representing the parties, Ms. Lau for Henry and Mr. Kat for Lily, the real issues were isolated and agreed. At the start of the trial, the issues were

1. forgery, in that Mr. Chan did not sign the alleged will,

2. lack of requisite testamentary capacity, Mr. Chan not being of sound mind,

3. undue influence on the part of Henry and Mr. Chan's elder daughter, Sara Martinson (whom I will call Sara),

4. want of knowledge and approval, in that Mr. Chan signed his will without knowing its effect.

3. Mr. Kat, on instructions, withdrew the allegation of undue influence during Ms. Lau's opening. Because of the length of time which this action has taken, he applied for an extension of time of approximately three years for serving reports of two medical experts and one hand-writing expert. The two medical experts, one a psychiatrist and one a clinical pharmacologist, identified what then seemed to me to be the heart of this case, namely the propriety of a prescription for and administration to Mr. Chan on the morning of 9th January of the drugs haloperidol and mianserin, and their effect upon him. Ms. Lau being prepared to grapple with this new evidence, I granted the extension requested.

4. I was not, however, prepared to grant a similar extension for the hand-writing expert. There were at least five people, including a solicitor and a psychiatrist, prepared to testify that Mr. Chan signed the will, although his hand was so shaky that the result resembled no signature of Mr. Chan's that had gone before. It was in fact a "mark". I saw no point in bringing at public expense an expert from Australia to be embarrassed and humiliated by suggesting the mark on the will may not have been made by Mr. Chan. Forgery, therefore, effectively became a dead issue.

5. Issues 2 and 4 remained. They are, however, really part and parcel of a single issue.

6. By counterclaim, Lily appeared to allege that Henry had misappropriated substantial assets of Mr. Chan, assets which have not been disclosed to the Estate Duty Office. This claim becomes irrelevant if the will is pronounced for, save as to any further interest that the Commissioner of Estate Duty may have. Even if Lily is successful on the main issue, however, it was Ms. Lau's contention that a claim of this nature is not apt for a probate action. After hearing counsel during the course of the trial, I struck out Lily's counterclaim for the reasons given at the time.

The law

7. There is no dispute that the burden lies on Henry to establish both that Mr. Chan had testamentary capacity and that he knew of and approved the contents of the will. The law as to testamentary capacity is long and well settled. In Banks v. Goodfellow [1870] LR 5 QB549 Cockburn C.J. delivered the judgment of the court. Although this was before the emergence of modern psychiatric thinking, medication and treatment, he gave what seems to me a surprisingly enlightened exposition of the various and distinct faculties and functions of the mind and how mental disease can either impair them all or impair only some and leave the rest undisturbed. He then turned to the power to dispose of one's property and at p.565 said

"that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

8. So three criteria are required to be met. The Chief Justice went on

"Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. But what if the mind, though possessing sufficient power, undisturbed by frenzy or delusion, to take into account all the considerations necessary to the proper making of a will, should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational and proper will is the result; ought we, in such case, to deny to the testator the capacity to dispose of his property by will?

It must be borne in mind that the absolute and uncontrolled power of testamentary disposition conceded by the law is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself. If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right."

9. On the basis of this passage, Mr. Kat contended that once it is shown that a testator is suffering from some impairment of the mind whether brought about by mental disease or the effect of some drug that is capable of influencing the testator's decision, the will must be set aside. It is not necessary, he said, to go on to consider the three criteria of testamentary capacity.

10. I disagree. If that was the position, it would not in my view have been necessary for that court to have laid down the test which it did. A close reading of that case makes it plain, in my judgment, that where a testator's capacity has been called into question, that question is resolved by application of the three part test. That, I believe, is the effect of the passage at p. 570

"Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one, that is to say, one in which natural affection and the claims of near relationship have been disregarded. But where in the result a jury are satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circumstances should not be upheld. Such an inquiry may involve, it is true, considerable difficulty, and require much nicety of discrimination, but we see no reason to think that it is beyond the power of judicial investigation and decision, or may not be disposed of by a jury directed and guided by a judge."

11. I am comforted that I am not alone in this view. In O'Neil v. Royal Trust Co. and Others [1946] 4 DLR 545, the Supreme Court of Canada had to address the point. Kellock J. at p.558 set it out thus

"The leading authority in cases of this sort is of course Banks v. Goodfellow (1870), 39 L.J.Q.B. 237. Mr. Farris lays emphasis on certain passages in the judgments in that case and in Smee et al. v. Smee (1879), 49 L.J. P.8 and submits that a testator suffering from delusion lacks capacity to make a will if the delusion is capable of affecting the making of the will and that in such case no inquiry is to be made or can satisfactorily be made as to whether the will was actually affected by the delusion."

12. The judge went on to review the authorities concluding

"Viscount Haldane in Sivewright v. Sivewright, [1920] S.C. (H.L.) 63 said at p. 65: "Their view was that the jury had been rightly directed that the mere existence of a delusion was not sufficient to avoid a deed, even though the delusion was connected with the subject-matter. It was a question for the jury whether the delusion had influenced the bargain, and the jury had thought otherwise. The delusion was not conclusive against capacity, although the fact of its existence might well be evidence bearing on this question. It is not necessary for us on this occasion to discuss the fashion in which the principle was applied in Jenkins v. Morris (1880) 14 Ch. D. 674; the importance of the case lies in the way in which it lays down the general principle that the delusion need not be held fatal, even if not wholly unconnected with the subject-matter." These authorities dispose of the contention above mentioned."

13. Rand J. without such an extensive review said at p.556

"Once there is shown the existence of a delusion which is calculated to influence the testator in making the dispositions of a will, then the Court must be convinced that in fact the delusion had no such effect."

14. That case is also authority for two other principles. First, that evidence of lay witnesses is not to be disregarded but rather taken into account. Second, that the standard of proof in relation to testamentary capacity is the usual balance of probabilities. Neither principle, as I understood it, was in dispute.

15. Dispute arose, however, over the issue of want of knowledge and approval which arises when suspicious circumstances surround the execution of a will. The burden again lies on the person seeking to uphold the will but the standard may be higher. As Viscount Simonds said in Wintle v. Nye [1959] 1 All E R 552 at p.557

"In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined."

16. The genesis is to be found in Barry v. Butlin [1938] 2 Moo. P.C.C. 480 where in delivering the judgment of the Privy Council, Parke B. said at p.482

"That if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion [483] of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased."

17. In Tyrrell v. Painton [1984] P151, Lindley L.J. said at p.157

"The rule in Barry v. Butlin (3), Fulton v. Andrew (1), and Brown v. Fisher (2) is not, in my opinion, confined to the single case in which a will is prepared by or on the instruction of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."

18. Relying on this and also paragraph 907 in 17 Halsbury's Laws of England, 4th edition (which refers to matters such as age, verbal instructions only and a will which is at variance with a testator's known affections), Mr. Kat argued that suspicious circumstances arise in this case. Those circumstances, he said, must be removed by proof that exceeds the balance of probabilities.

19. Again, I disagree with Mr. Kat. I have three reasons. First, in my judgment, the real issue in this case is testamentary capacity. If that is established on the balance of probabilities, knowledge and approval on the part of Mr. Chan follow.

20. Second, suspicious circumstances in the Barry and Butlin sense must attach to the preparation and execution of the will. In Re R. (deceased) [1950] 2 All E R 117 Willmer J. said at p.121

"The conclusion which I draw from these authorities is that in dealing with a question of knowledge and approval of the contents of a will the circumstances which are held to excite the suspicions of the court must be circumstances attending, or at least relevant to, the preparation and execution of the will itself. This view is, I think, confirmed by the decision of the Court of Appeal in In the Estate of Musgrove (5), where it was held that a suspicion engendered by extraneous circumstances, arising subsequent to the execution of the will, was not a sufficient reason for rebutting the presumption of the due execution of a will regular on its face. In the course of an exhaustive judgement LORD HANWORTH, M.R., said ([1927] P. 280):

"What of the suspicion? It is not such as attaches to the document itself in the sense in which SIR JAMES WILDE uses the term in Guardhouse v. Blackburn (6), or as it arose in Tyrrell v. Painton (4) in the preparation of the will. The wide definition of suspicion stated by LINDLEY, L.J., in the latter case, that it 'extends to all cases in which circumstances exist which excite the suspicion of the court,' appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution, and DAVEY, L.J., seems to have had the same matters in mind. Their judgments were not intended to alter, but to affirm the principles laid down in the cases I have cited."

There is some authority in MORTIMER ON PROBATE LAW AND PRACTICE, 2nd ed., p. 76, for the proposition that in some circumstances matters extraneous to the preparation and execution of the will may properly be held to excite the suspicion of the court whether the deceased knew and approved of its contents. It is there stated:

"Again the following circumstances may require satisfactory explanation, especially where the person who prepared the will was a beneficiary thereunder: the fact that the testator gave no instructions for the will, and was without independent advice, legal or otherwise; that persons who benefited assumed authority over him, while he was weak or debilitated; excluded his relations and friends; obtained money from him; and assumed control of his affairs. Any one of these circumstances, standing alone, may admit of explanation, but their cumulative effect would be to raise a strong suspicion that the testator was a mere passive instrument in their hands."

It is with hesitation that I venture to criticise an authority which is entitled to such well-deserved respect, but if the author means by this passage that circumstances such as he refers to, if not in some way concerned with, or shown to be relevant to, the preparation and execution of the will are such as ought to excite the suspicion of the court, I doubt whether the views expressed are consistent with the rule as defined in Barry v. Butlin (2) and the subsequent cases to which I have referred. It is to be noted that all the authorities cited in support of the proposition in the text are anterior in date to Barry v. Butlin (2)."

21. As Miss Lau said, it is important to distinguish between matters casting doubt upon the execution of the will and those which give rise to different issues such as undue influence or fraud where the burden lies elsewhere. SeeMaw v. Dickey 52 DLR (3d) 178.

22. Third, even if the circumstances of the preparation and execution of the will give rise to an independent issue of suspicion in this case, I am of the opinion that the circumstances are so low on the scale of suspicion that the standard remains as balance of probabilities.

The plaintiff's case

23. Mr. Chan was born in China in 1909. He was about 81 when he died. He married a Madam Ip and had the four children: Henry who was born in 1943; Sara in 1945; Lily in 1948 and Sylvester in 1949. Madam Ip left Mr. Chan in about 1956 and thereafter had no contact with her family. Some form of separation agreement was made but Mr. Chan and Madam Ip remained formally married until Mr. Chan died.

24. Sara left home in 1963 to study in U.S.A. where she became a qualified nurse. She married and settled there and now lives with her husband and children in Los Angeles. She kept in touch with Mr. Chan, initially by letter, later when she was better off by telephone and visits of which she made seven or eight.

25. Lily and Sylvester also left home in the early 1970s. They too settled overseas, Lily in U.S.A. and Sylvester in Canada. Their contact, if any, with Mr. Chan was not so close and frequent as Sara's.

26. Only Henry remained in Hong Kong. He married in 1971 but continued to live with Mr. Chan for a few years in the family flat at 94 Robinson Road. He had a daughter in 1972 and a son Chi-kin in 1975. Because Henry and his wife were both working when Chi-kin was born, Chi-kin was put in a nursery home. Later, Henry took him to stay with Mr. Chan so that Mr. Chan would have some company other than old people. Mr. Chan was then living with Henry's old aunt and a maid. Chi-kin remained living with Mr. Chan until he died.

27. Henry kept in close touch with Mr. Chan. He saw him at least once per week and more often if not otherwise engaged. From Mr. Chan, Henry received news of his brother and sisters. Henry and his family accompanied Mr. Chan on two visits which Mr. Chan made to U.S.A. and Canada in 1984 and 1988. The whole family, with the exception of Lily, got together on these visits. Lily apparently was not invited.

28. Mr. Chan was a graduate of Hong Kong University and had been a civil engineer until he retired in the 1970s. Thereafter, he occupied his time in studying and dealing in stocks and shares. He also enjoyed talking and delighted in debate. He enjoyed good food. At some stage, however, he developed nephrotic syndrome, a symptom of which was swelling of his legs. By 1988, his movement was considerably restricted. Photographs (exhibit P1) taken during his second visit to U.S.A. and Canada showed Mr. Chan's legs to be very swollen and that he was using a walking aid. Mr. Chan had also had an ulcer on his ankle for many years which would not clear up and required constant care. Nonetheless, in the photographs he was plainly in good spirits.

29. Mr. Chan was not however a model patient. On 15th September 1989, Sara was constrained to write to him saying she had discovered that the swelling was worse and entreating him to take diuretics and both to exercise and put his feet up. This would reduce the swelling and improve his circulation. Sara said she hoped to be able to come to Hong Kong in November.

30. At the end of November, Henry went on a training programme to Singapore. He phoned Mr. Chan everyday. During one telephone call, Mr. Chan told Henry that he had no strength in his leg and was unable to stand. Henry told him to see a doctor and learned that Mr. Chan's condition improved after this. He did not therefore return to Hong Kong immediately although he cancelled a planned excursion to Indonesia and Malaysia. He returned to Hong Kong at the beginning of December and discovered that Mr. Chan's health was far worse than he had been told. Mr. Chan could not stand up on his own and had become incontinent.

31. Mr. Chan had in fact been visited on 1st December by his doctor, Dr. Anthony Ng, who had been treating him since January 1987. Dr. Ng had been called, according to his notes, because of sudden weakness of the right leg. He found the swelling of both legs about the same as before. He was concerned about the possibility of a stroke. He carried out a thorough examination but found no significant evidence of a stroke. Although he did not record it in his notes, as he had done on a previous occasion, he would have checked muscle power. He also found Mr. Chan's lungs were clear and detected nothing wrong with Mr. Chan's heart. He ruled out congestive heart disease. He took a blood sample which upon analysis revealed a picture little changed from 31st October 1988. Haemoglobin was 9.9, indicating mild anaemia; urea was 66 indicating a kidney problem.

32. Dr. Ng knew nothing at that stage of Mr. Chan's incontinence.

33. Mr. Chan now needed constant care to get him up, in and out of a wheel chair, and to a bathroom. The burden fell on Henry, Chi-kin and a part-time maid. The burden proved too much for Henry who, after a full-day's work, was often with Mr. Chan until after midnight. After consulting Mr. Chan, Henry asked Sara to come and help. Sara agreed and arrived on 15th December.

34. Sara found Mr. Chan much more frail physically but mentally as alert as ever. Mr. Chan continued to pay attention to world affairs and followed the stock market. He discussed politics, particularly the events of 4th June which had upset him considerably. He was still able to joke. Mr. Chan had however become frustrated, impatient, stubborn and bad-tempered. Sara attributed this to his loss of independence and his need to rely on others.

35. Henry and Chi-kin both agreed Mr. Chan had become bad-tempered and stubborn or impatient. Chi-kin detected a slight slowing of Mr. Chan's speech. Mr. Chan was, however, just as talkative, paid attention and appeared no different mentally.

36. According to Sara, a sign of Mr. Chan's mental alertness was a visit on 16th December by an old school friend of Sara's. Mr. Chan recognised her immediately, talked to her and enjoyed the visit. This visit, however, perhaps led to the present litigation. Sara had previously raised the question of a will with Mr. Chan. During the 1988 visit to U.S.A., she suggested Mr. Chan should have a will so everything would be clear and there would not be a terrific fight as had occurred between her cousins when Mr. Chan's sister died. Mr. Chan simply said "hm" as he did when Sara raised the question again when she came to Hong Kong.

37. Sara also mentioned this to her friend who said that if someone was not divorced half the estate would go to the wife and the rest to any children. Sara knew Mr. Chan had never forgiven her mother for leaving the family. She told Mr. Chan what would happen if he left no will. Mr. Chan showed interest and said Sara should find out from a lawyer if what she had told him was true or not.

38. On 19th or 20th December, Dr. Ng with a Dr. Wan, a surgeon, visited Mr. Chan. This was to see whether a surgeon could assist in improving Mr. Chan's oedema. Dr. Ng thought Mr. Chan's weakness was due to oedema. He also dealt with the ulcer.

39. After discussing the problem of a will with Henry, Sara and Henry went to see a solicitor, Mr. Chung Shue-kwan. Mr. Chung confirmed that the separation deed between Mr. Chan and Madam Ip probably had no legal effect. This was reported to Mr. Chan who, according to Sara, said he was interested in having a will drawn.

40. At the same time, Sara was becoming concerned that Mr. Chan needed help in his affairs. Indeed, in her letter of 15th September, she had suggested that Mr. Chan should let Henry help him take care of his finances and documents. Once in Hong Kong, Sara found that not only could Mr. Chan not go out to his bank to deal with his affairs but was also having difficulty with his signature. She made out a series of cheques for him. Mr. Chan's signature varied from cheque-to-cheque and day-to-day which was causing difficulty with the bank.

41. On 30th December, Dr. Ng was consulted by Mr. Chan about coughing and dyspnoea, i.e. shortness of breath. Dr. Ng prescribed choledyl and bricanyl durule, both bronchodilators, for shortness of breath; amoxil and antibiotic for upper respiratory tract infection; and something for Mr. Chan's cough. He accepted that bronchodilators are to open air vessels in the lungs and that prescribing them was consistent with having heard fluid. However, Dr. Ng said he would have noted any congestion and that bronchodilators are not necessarily for congested lungs but could have been for symptomatic relief of shortness of breath. He considered congestive heart disease but found no evidence of it. He would have prescribed digoxin to improve the heart as a pump had he done so.

42. At about this time, Mr. Chan informed his family that an old friend was coming from Taiwan and that he would treat the friend to dinner. A banquet was arranged at City Hall, Mr. Chan's favourite restaurant. The family waited at the flat for the friend who neither appeared nor called. Mr. Chan refused to accept that his friend would not come. He refused to go to bed and stayed up all night. This alarmed Sara who feared for his health if Mr. Chan did not get proper rest. Neither Sara nor Henry knew the identity of the friend save that Henry thought it was someone connected with Henry's god-father who had been Mr. Chan's partner in his business in China.

43. On or before 6th January 1990, Dr. Ng was telephoned by Sara about the will and for advice generally about dealing with Mr. Chan. Sara was used to the U.S.A. practice of seeking both social counselling and psychiatric help in managing patients like Mr. Chan. By letter dated 6th January, Dr. Ng referred Mr. Chan to a psychiatrist, Dr. Ip Yan-ming. After mentioning Mr. Chan's oedema and ulcer, but making no mention of a stroke, Dr. Ng said

"What the family members of the patient wishes at the moment is your expert assessment of his mental conditions with the view of fitness in establishing a will. It is also the concern of the relatives regarding the approach to the patient in the future as the patient is rather stubborn. Recently, the patient was very much disappointed over the incident that a very good friend was supposed to come to visit him in Hong Kong, and when the patient was very high-spirited over the preparation of the visit, he was let down because his friend did not come to Hong Kong (may be due to some mistake in the arrangement). The anger from disappointment makes the patient a bit more difficult to approach.

Hence I am referring him to see you for an assessment and your advice on how the relatives would manage him in the future."

44. An appointment was made for Mr. Chan to see Dr. Ip on 9th January.

45. On 7th January, Mr. Chan insisted on going to the airport to see Henry's daughter off to England, and on paying for dinner at the airport hotel. Henry noticed him signing a credit card voucher very slowly with some trembling of his hand. The restaurant would not accept the voucher until Mr. Chan's identity had been verified by his identity card. Henry talked to Mr. Chan about this. As a result, Mr. Chan agreed that Henry should arrange for a power of attorney in Henry's favour.

46. Sara's elder son had been accepted for Yale University. Sara could not however afford US$100,000 for the 4-year course. She asked Mr. Chan if he could help and he suggested Sara should go to his bank and transfer the money. At the very least, Mr. Chan apparently believed he had sufficient funds there. On 8th January, Sara fetched a TT transfer form from Mr. Chan's bank, the Shanghai Commercial Bank. Mr. Chan signed the form without difficulty. It turned out, however, that there was not enough money in the account. Mr. Chan seemed surprised, even puzzled. He phoned his bank. He did not however discuss the matter further with Sara. That night, according to Dr. Ip's notes, Mr. Chan would not eat, drink or sleep and was suspicious.

47. On 9th January, Henry phoned Mr. Chung saying that because of his problems, Mr. Chan wished to sign a power of attorney in Henry's favour. Mr. Chung agreed to prepare a power for execution later in the day. He advised Henry to have a qualified medical practitioner present to be certain that Mr. Chan had the mental capacity to sign such a document.

48. On the same day, Sara took Mr. Chan for his appointment with Dr. Ip. I shall deal with this in some detail when I consider Dr. Ip's evidence. Sara's evidence was somewhat vague. There is no doubt, however, that Dr. Ip interviewed Mr. Chan. At some stage, Dr. Ip asked Mr. Chan about the will and "who he wanted to leave all his assets to". Mr. Chan quickly said "to Henry." Although Sara could not remember, it is not in dispute that Dr. Ip then prescribed haloperidol 0.5 mg twice a day and mianserin 10 mg at night. He also gave Mr. Chan an immediate injection of 1.25 mg of haloperidol.

49. Mr. Chan then wanted to go to City Hall for lunch. Sara asked Dr. Ip about this. Dr. Ip said "Humour him". At City Hall, Sara and Mr. Chan met Henry and had a good lunch. Mr. Chan was fully aware of his surroundings and enjoyed himself. According to Sara, Mr. Chan had trouble with his spoon and chopsticks and let Sara feed him for the first time. Henry however could not remember this.

50. After lunch, Sara took Mr. Chan home and got him into bed for his afternoon nap. Later, in anticipation of Mr. Chung coming with the power of attorney, Henry arrived at Mr. Chan's flat. Mr. Chan was woken and got ready. Mr. Chung arrived around 6:00 p.m. Dr. Ip arrived at about the same time. Mr. Chan was wheeled into the living room in his wheel chair. Everyone gathered round a table, some sitting and some standing. Chi-kin was there, while the maid was in and out.

51. What took place on this occasion I shall again have to deal with in some detail when I deal with Dr. Ip. In brief, there were introductions and small talk. Dr. Ip asked some questions about Mr. Chan's children and if he recognised who was in the room, all of which Mr. Chan answered quickly and correctly. Dr. Ip indicated that Mr. Chan could execute the power of attorney. Mr. Chung took out this document and explained it to Mr. Chan in English and Cantonese. He asked Mr. Chan if he understood it. Mr. Chan read it himself very slowly and carefully as was his habit with things of this nature. Then Mr. Chan signed but his hand was trembling badly and he took a long time. As I have said, what Mr. Chan produced was not a signature but a mark.

52. Mr. Chung asked Dr. Ip about the trembling. Dr. Ip said it might be the effect of drugs Mr. Chan had taken but confirmed that there was nothing wrong with Mr. Chan's mental capacity.

53. The question of a will was then brought up. Not everyone present remembered clearly but Sara and Mr. Chung both said this was brought up by Mr. Chan himself. Mr. Chan indicated he wanted it done. Mr. Chung said that as there was a doctor there, he could do it and write it out on paper. Chi-kin fetched a piece of paper. Mr. Chung enquired of Mr. Chan what would be the contents of the will.

54. According to Sara, Mr. Chung asked who Mr. Chan would like to give all his assets to. According to Henry, Mr. Chung asked "I am now writing your will, what do you have in mind, how would you like to have your estate distributed".

55. After nearly 8 years, I find nothing in this discrepancy. Nor do I attach any importance to the possible use of "all assets" by Mr. Chung, a phrase used earlier in the day by Dr. Ip. I do not see it as some hint, suggestion or encouragement that only one person should inherit Mr. Chan's estate.

56. Mr. Chan immediately indicated that Henry was to have everything. This surprised Mr. Chung, not least because Sara was there all the way from USA to look after her father. So Mr. Chung asked again how Mr. Chan would like to distribute his assets. Without hesitation, Mr. Chan said he would give all his assets absolutely to Henry. According to Mr. Chung, Mr. Chan seemed very determined on this, and was impressed that Mr. Chan had a strong character.

57. Mr. Chung wrote out a short will appointing Henry sole executor and sole beneficiary. He explained to Mr. Chan who looked at it carefully himself. Mr. Chan then signed or attempted to sign. The tremors in his hand were such, however, that he had the greatest difficulty and produced what Henry described as "a bunch of grass". Certainly what Mr. Chan put on his will is no recognisable signature and was, again, a mark. Mr. Chung and Dr. Ip witnessed the will.

58. After some further chat, Mr. Chung and Dr. Ip left. The family then had dinner during which Mr. Chan suddenly had shortness of breath. The colour of his face changed. Sara found Mr. Chan's pulse was high. A decision was taken to call an ambulance and send Mr. Chan to the Hong Kong Sanatorium. As Dr. Ng had no privileges at the Sanatorium, Henry contacted Dr. John Sham who had treated a colleague of Henry's there.

59. Mr. Chan arrived at hospital at about 8:00 p.m. and was admitted to a ward at about 8:15 p.m. He was seen initially by another doctor who, on instruction from Dr. Sham on the telephone, ordered a chest X-ray and an ECG. Dr. Sham saw Mr. Chan later that evening when, apart from giving his name, Mr. Chan would not give any other information. Dr. Sham therefore obtained the history of Mr. Chan's illness from relatives, principally Sara.

60. It is here that a real anomaly arises. Dr. Sham, in addition to routine medical notes which record each visit which he made to see Mr. Chan together with his findings and treatment, completed a form of "history and clinical notes". This form includes the words "Dec TIA (R) side weaker ... today cyanotic". This form is dated 10th January 1990. I am in no doubt, however, that it refers to Dr. Sham's findings on admission on 9th January. Subsequently on 26th April 1995, Dr. Sham produced a report on Mr. Chan in which he noted that the medical history obtained from relatives included "transient ischaemic attack [TIA] with right sided weakness in December 1989". He also referred to Mr. Chan "being blue with cough and increasing SOB [shortness of breath]".

61. There is a comparable entry in Dr. Ip's notes of his interview in the morning of 9 January. Dr. Ip recorded "stroke in December 1990" - an obvious error - and "CVA [cerebral vascular accident] in December 1989." This, he said, was a reference to the information given him by Dr. Ng and possibly Sara or Mr. Chan. He also mentioned it in his report for this trial.

62. How the report of CVA/TIA came into being is unclear. Dr. Ng was adamant that he had never diagnosed a TIA. Neither Sara nor Henry knew anything about it. Dr. Sham could find no evidence of it although he conceded that a mild stroke can, but rarely, fool a doctor and his equipment. On balance, I find that these entries by Dr. Sham and Dr. Ip were probably safeguards on their part, given the incident of 1st December, to ensure that the possibility of a heart problem was not overlooked.

63. The possibility of a heart problem was not overlooked. Dr. Sham carried out a thorough examination of his patient. Once a sputum test was returned, he diagnosed pneumonia. There was no evidence of pulmonary oedema otherwise he would have recorded it. There was no evidence of heart trouble either to be heard or seen on an ECG. Although the X-ray which he had ordered suggested what was shown was consistent with pulmonary oedema, he was confident that the proper diagnosis was pneumonia, not least because of a mild fever of about 100( F which is a symptom of pneumonia but not of pulmonary oedema.

64. On 10th January, Mr. Chung was called on again by Henry. This time it was to prepare a statutory declaration in respect of Mr. Chan's aliases. Mr. Chung prepared this document and attended the Sanatorium for Mr. Chan to execute it at about 7:00 p.m. that day. There, Dr. Sham confirmed that Mr. Chan was of sound mental capacity, and on 12th January signed a certificate that Mr. Chan was "mentally fit to sign and give" a power. Mr. Chung read and explained the document to Mr. Chan who appeared to understand. Mr. Chan then signed. Mr. Chung noticed that the trembling in Mr. Chan's hand had slightly improved and that he could sign better than he had done on the power of attorney and will.

65. It appeared to Henry that Mr. Chan might be in hospital for some time and that this would be expensive. He therefore asked Mr. Chan for details of his bank accounts so that he could transfer some money. He then discovered Mr. Chan had a number of banks. It was necessary for officers to come from these banks to the Sanatorium to update Mr. Chan's signature before the accounts could be operated. Mr. Chan dealt with all of these.

66. Finally on 12th January, while Sara and Henry were talking to Mr. Chan, Mr. Chan's condition worsened. Dr. Sham informed them that Mr. Chan's condition was very serious and that intensive care might be necessary. He said he would depend on machinery to live. Sara and Henry discussed this for some time because it would be very expensive. Eventually, they took the view that the money Mr. Chan had made should be spent on sustaining or curing him. Before they reached a decision, however, Mr. Chan had a cardiac arrest at 11:15 p.m. In spite of immediate treatment, he died shortly after midnight.

67. During the 1980s, Mr. Chan had given Sara a key to a safety deposit box at Wing Lung Bank. After Mr. Chan's death, she went with Henry to open the box. She found share certificates in both her and Sylvester's name. Her shares were worth about US$80,000; Sylvester's about US$60,000.

68. According to the Estate Duty Office schedule, the principal value of Mr. Chan's estate was $8.4 m., net $6.7 m. Duty of $1.29 m. was paid. That, of course, presents a very different picture from the suggestion made in this case that Mr. Chan was a tycoon worth over $100 m. I accept that, once Lily's counterclaim was struck out, this aspect of Lily's allegations against Henry was not pursued. I observe, however, that there is really nothing to suggest that Mr. Chan's fortune was other than the modest one disclosed in the estate duty documents.

Dr. Ip

69. It is appropriate at this stage to deal with the evidence of Dr. Ip. Because of the nature of the ultimate attack on the Plaintiff's case, Dr. Ip became a pivotal witness. Dr. Ip found that Mr. Chan was suffering from no formal psychiatric disorder and to be of sound mind for the purpose of making a will.

70. Dr. Ip was called as both a witness of fact and as an expert witness in the field of psychiatry. He had been practising psychiatric medicine since 1979. There was no challenge to his expertise. It must be acknowledged, however, that Dr. Ip was not the type of witness that one would wish to see in the witness-box very often. Perhaps surprisingly for a psychiatrist, Dr. Ip seemed unable to collect his thoughts so that his answers were somewhat haphazard in nature, and often required a good deal of clarification so that the precise point which he wished to make could be ascertained. Refreshingly, however, Dr. Ip's evidence had a spontaneity that is so often lacking in any witness and particularly an expert witness who has a brief to which he will generally cling. Consequently, as Dr. Ip was questioned about the events of 9th January, more and more details began to emerge from his memory. This was perhaps hardly surprising because, in the days and weeks following Mr. Chan's death, he was approached by lawyers, by Lily, by the police and by another doctor from the Sanatorium about the documents which Mr. Chan had signed shortly before his death. As Dr. Ip put it, he was prompted to look at and remember the case, time and again. Dr. Ip was no actor. I have no reason to doubt the evidence which he gave. I have no hesitation in accepting the factual details which he gave of his interviews with Mr. Chan and of the events generally on the evening of 9th January. Whether I accept his clinical assessment of Mr. Chan, however, remains to be seen.

71. Dr. Ip explained his procedure for a clinical psychiatric assessment. He said that having obtained the history of the patient and the reason for referral, he will note down differential diagnoses in order to help him in the course of his examination and investigation. Differential diagnoses are possibilities to be eliminated or confirmed. He then carries out an examination of the patient and eliminates such provisional diagnoses as he can. He will then carry out a further investigation in order to confirm any specific diagnoses and arrive at a definitive diagnosis. In doing this, he completes a pre-printed form. At the beginning of the form is the notation "provisional Dx", that is provisional or differential diagnoses. There is then a box entitled "history" followed by boxes for "mental state" "P/E" (physical examination) "personal H X" (personal history) "past health" and "management". Dr. Ip said that he fills in the boxes as the examination and investigation develop. As relevant matter arises, he will note it in the appropriate place.

72. According to Dr. Ip, the notes which he made of "history" came mainly from Sara. He also noted some information which he had obtained by telephone from Dr. Ng but he could not remember whether it came before, during or after the interview. The information from Dr. Ng noted Mr. Chan's right leg weakness in December 1989 (wrongly noted as 1990) and that Mr. Chan was "rational and sensible orientated relevant".

73. In his notes of the history obtained from Sara, Dr. Ip recorded among other things Mr. Chan's long standing kidney problem and "stroke in December 1990" (1990 should of course be 1989). This entry is complemented under "past health" where Dr. Ip recorded "CVA in Dec. 1989". Dr. Ip thought that this referred to the information he had noted from Dr. Ng, but perhaps Sara and even Mr. Chan gave him this information.

74. As I have already indicated, there is really no evidence that Mr. Chan had a stroke or heart attack in December. The weakness which Mr. Chan suffered, however, was at least a symptom, albeit discounted by Dr. Ng and Dr. Sham. But whether or not Mr. Chan had had such a problem, the fact that Dr. Ip believed it to be so at the time was an important factor for him to have had in mind when reaching a diagnosis.

75. Returning to Dr. Ip's notes of history, he recorded that Sara came back to Hong Kong "because patient threw temper". Dr. Ip also made a reference to the abortive banquet for Mr. Chan's friend and noted "not amenable to explanation". Dr. Ip then recorded "yesterday, patient did not sleep, refused to eat or drink, suspicious". Finally, there is a note "lots of losses recently (e.g. a best friend died recently)".

76. In the next box "mental state", there is a first sub-heading "A and B [attitude and behaviour]". Next to this heading, Dr. Ip recorded "suspicious". This, explained Dr. Ng, was not an affirmative finding but a description of Mr. Chan's attitude and behaviour when he first came in. Dr. Ip said he saw Mr. Chan looking around and wrote "suspicious" as his immediate reaction. Dr. Ip pointed out, however, that such a reaction is normal in a patient coming to a clinic and meeting a strange doctor. Later in the examination, after there had been some conversation and interaction, Mr. Chan's suspicion had worn off.

77. The next sub-heading in this box is "speech". Dr. Ip noted "relevant but vague" and "denial of anything". By "vague", Dr. Ip simply meant that what Mr. Chan told him was not detailed enough. Mr. Chan's responses were not inappropriate but initially Mr. Chan did not speak very much. As far as the "denial" was concerned, Dr. Ip explained that he asked Mr. Chan if there was anything wrong or if he could help. Mr. Chan said he did not need help. It was therefore a denial in that context and something that Dr. Ip wrote early in the interview.

78. Dr. Ip next noted "no delusions/hallucinations". Dr. Ip said he queried whether there might be delusions in view of the history of the abortive banquet and Mr. Chan's stubborn insistence on waiting for his friend. After talking about it with Mr. Chan, Mr. Chan said to forget it. Dr. Ip was satisfied that Mr. Chan had appraised the situation stubbornly, not delusionally. Dr. Ip was also satisfied that there was no question of hallucinations.

79. Later in the interview, the question of the disposal of Mr. Chan's assets came up although Dr. Ip could not remember precisely who raised it. In the "mental state" box, Dr. Ip noted "wants his eldest son, Chan Sai-lun to help his business:

stock, bank

said "he help me in everything.""

There is a further reference to this topic, just below in the next box, that "wants to give his things to his son".

80. Dr. Ip remembered that he deliberately enquired whether there was anyone else who needed a gift from Mr. Chan. He said jokingly that Sara had been so good in coming to serve him, was he going to give anything to her. Dr. Ip said it struck him as odd that Mr. Chan was not giving anything to a caring daughter.

81. Still under "mental state", Dr. Ip recorded "said "I have to help the country"" and "frequently wants". Dr. Ip said that Sara had mentioned that Mr. Chan wanted to help the country and he had tried to clarify. However, Mr. Chan would not answer. Dr. Ip asked Sara about this. Sara explained that Mr. Chan used to love his nation and was very concerned about the events of 6th June. Mr. Chan's past was that of a nation lover. Dr. Ip noted that, during this exchange, Mr. Chan was attentive and showed no abnormal expression when Sara mentioned Mr. Chan's usual nation loving attitude. Dr. Ip was satisfied that this was in keeping.

82. Dr. Ip also noted "age" and "telephone" each followed by a firm tick. This signified that Mr. Chan understood the questions and that his memory was intact. Under "physical examination", Dr. Ip noted "chest - clear" together with normal figures for pulse and blood pressure. Dr. Ip said he listened to Mr. Chan's chest. There was no crepitation or abnormal sound. He could hear good air entry. There was not, Dr. Ip was sure, any pulmonary oedema. Dr. Ip also made brief notes of Mr. Chan's personal history. These details he usually obtains from the patient and confirms with the accompanying relative.

83. According to Dr. Ip, he had a long session of perhaps one hour with Mr. Chan. There was no formal testing. There were matters which Dr. Ip could have assessed but which Mr. Chan refused or was reluctant to answer. Overall, however, Dr. Ip found Mr. Chan not to be disorientated, to have clear consciousness, had reasonable attention and concentration. He was confident that, as a result of his clinical assessment, that is the talk and reaction, any significant impairment would emerge. Dr. Ip found there was no significant impairment of Mr. Chan, he could not detect any psychiatric or other illness which would influence Mr. Chan's mental functioning.

84. What concerned Dr. Ip was the fact that Mr. Chan was not sleeping or eating. His experience was that an old person can deteriorate very fast in such circumstances. He decided Mr. Chan needed symptomatic treatment, that is for not sleeping and eating and because Sara found him a bit suspicious and emotional. Dr. Ip hoped to let Mr. Chan sleep and eat better and calm down. He decided not to give Mr. Chan one of the benzodiazepines such as valium because it can be addictive and cause paradoxical excitation in persons who are very old or very young. He decided on a low dose neuroleptic for tranquilizing Mr. Chan. He prescribed 0.5 mg haloperidol twice a day and tolvon 10 mg at night for 3 days. Tolvon is mianserin. He also gave Mr. Chan an immediate intramuscular injection of 1.25 mg haloperidol. After such an injection for an old man, Dr. Ip's practice is to let the patient rest for about 1/2 an hour to ensure that there are no immediate adverse reactions. Thereafter, the relative will be asked to take the patient home for a rest.

85. In his notes, Dr. Ip also recorded receiving a telephone call from Henry and that he was to go to Mr. Chan's home at 6:00 p.m. for the signing of the power of attorney. According to Dr. Ip, he arrived there at about 6:15 p.m. and met Mr. Chung on the ground floor. Dr. Ip emphasized in his evidence that he had said that there should be a lawyer present if Mr. Chan was going to sign anything.

86. On arrival in Mr. Chan's flat, he saw that Mr. Chan, Henry, Sara and Chi-kin were there. Dr. Ip greeted Mr. Chan asking whether Mr. Chan remembered him. Mr. Chan replied "Dr. Ip". Dr. Ip was concerned to note that Mr. Chan was chesty and had rapid breathing. This he recorded as "a bit dyspnoea" in his notes. Dr. Ip also noted "tremulous" by which he meant shakiness. Dr. Ip recorded that Mr. Chan had gross tremor in his hands when he was writing but, when he was talking, tremors were not so obvious.

87. Dr. Ip asked what had happened to Mr. Chan. Henry informed him that Mr. Chan had been attended by another doctor and been prescribed chest drugs. As Mr. Chan had been taken care of by a physician, Dr. Ip left that topic. He then concentrated upon Mr. Chan's fitness to sign the power of attorney. He found that conversation with Mr. Chan flowed much better than in the morning. He discovered that Mr. Chan had had a rest and observed that he was not certainly not drowsy. He asked Sara what had been the effect of the haloperidol. As far as Sara was concerned, there was no obvious adverse effect.

88. The events of the evening fell into two parts. There was the signing of the power of attorney. Second, there was the preparation and execution of the will. As far as the power of attorney is concerned, Dr. Ip had no clear recollection or memory of what took place. He asserted, however, that he had a much clearer picture of the events relating to the will. He was also clear in his mind that, although his notes of the evening are sketchy, he carried out a full routine examination of Mr. Chan's mental capacity. He reached the same conclusion as in the morning, that Mr. Chan was not suffering from any formal psychiatric disorder. In reaching that conclusion, Dr. Ip was alert to the indications given by Mr. Chan's tremors. These tremors raised Dr. Ip's suspicion that, as he put it, "might be something else". He thought that this might be the effect of the haloperidol or a combination of drugs which had impaired Mr. Chan's motor activity. Indeed, Dr. Ip could find no rigidity and all he could find was a motor impairment. But because of the indications, Dr. Ip concentrated all the more on his cognitive assessment of Mr. Chan.

89. Dr. Ip said that, when he went up to Mr. Chan's flat, he was very cautious because it had crossed his mind that there was something going on. At one stage, he virtually pushed the family away so that he could speak more privately to Mr. Chan. He asked Mr. Chan whether he had anything against the will in order to ensure that Mr. Chan was not under any undue influence. Dr. Ip thought that if necessary he could refrain from witnessing the will. He was, however, reassured by Mr. Chan that he was not under any force. In relation to the power of attorney, Dr. Ip did remember pointing out to Mr. Chan that, with the power, Henry could take Mr. Chan's things away. Mr. Chan explained that he trusted Henry because Henry had been doing such things for years.

90. In respect of the will, Dr. Ip said he specifically asked Mr. Chan about Mr. Chan's other relatives, that is his wife and children. Mr. Chan said that he disliked giving them although he did not give any reason. Mr. Chan did explain, however, that he loved his grandson who had been close to him and made these years happy. Therefore, Mr. Chan would like his property to be inherited to his grandson. Again, Dr. Ip pointed out that Henry might take everything so there would be nothing for his grandson. Mr. Chan said that Henry would not do it because he loved his son.

91. Dr. Ip made notes of his visit. He made reference to dyspnoea and Mr. Chan being tremulous and on chest drugs. He continued

"knows his power ( the consequences
and who to give ? his son, so that
it could be inherited to his grandson.
dislike giving anything to his wife ...
(assessment) fit to sign."

Defence

92. I remind myself that for a will to be valid, a testator must understand:

1. that he is making a will and its effects

2. the extent of the property of which he is disposing and

3. the claims on his property which he ought to recognise.

93. At this point, I have to say that given the picture painted of Mr. Chan when he made his will; given the rationality of that will in the light of the family background; and given the attendance and opinion of Dr. Ip it is difficult to understand why it is said any or all of those three requirements were not met. The answer advanced of behalf of Lily is that

1. It is highly likely that, on 9th January 1990, Mr. Chan was suffering from cognitive impairment due to a progressive dementing illness and/or consequent upon a cerebro-vascular accident and/or TIA, prior to the administration of haloperidol by Dr. Ip during the morning.

2. The IM administration of haloperidol 1.25 mg (and possibly 0.5 mg orally later) had or was capable of having a deleterious effect upon Mr. Chan's cognitive functions, in particular his thought and therefore his judgement, at between 6:15 and 7:15 p.m., whether or not he was already impaired as above.

3. Dr. Ip's reported finding that Mr. Chan "was [at the time of making the will] of sound disposing mind to make a valid will" is unsafe and unsupported by all the evidence. Further, Dr. Ip's assessment upon which he made that finding was made without taking into account all relevant and important factors and without sufficient testing of Mr. Chan's cognitive functions.

4. On all the evidence, the Court cannot be satisfied that Mr. Chan was of testamentary capacity at the material time.

Dementia

94. Before embarking on an examination of these issues, it will be helpful to explain briefly how a psychiatrist assesses a patient. Happily, this is common ground (it would be alarming if it was not). Initially, he carries out a routine cognitive state examination which involves testing orientation, attention and concentration, memory, general information and intelligence: see Lishman, Organic Psychiatry 2nd Edition p.83. While each of these areas has a standard approach, they are not self-contained. Answers or reactions in one area may cast light on another. Further, a patient's history is very important. Details should be obtained both from the patient and his family or friends. The psychiatrist's final assessment or diagnosis will take into account all the material he obtains. Dr. Ip agreed with me that "everything is grist to the mill".

95. This routine examination may enable the psychiatrist to form a firm diagnosis that there is or is not a psychiatric disorder. If, however, the psychiatrist cannot be certain, he will go on to conduct an extended cognitive state examination. This involves examining the cognitive state functions with greater thoroughness, particularly those which had aroused suspicion.

96. Dr. Ip's performance and conclusions in this case received approval from Dr. C. K. Wong, the respected Professor of Psychiatry at the Chinese University of Hong Kong. Dr. Wong was called as an expert psychiatrist by Henry. Although he reviewed the material, his position essentially was that a well trained and experienced psychiatrist is unlikely to miss psychiatric and cognitive symptoms.

97. For Lily, Dr. Brian Connell had serious reservations about the adequacy of Dr. Ip's examination and diagnosis. Having regard to Mr. Chan's history and the way in which he presented at the interview on the morning of 9th January, Dr. Connell was of the view that neither Dr. Ip's notes nor his evidence demonstrated a sufficient examination and that, on the information available, he would have diagnosed organic brain syndrome probably dementia.

98. Two points confused Dr. Connell. First, in his notes Dr. Ip appeared to have reached a diagnosis, albeit provisional, and prescribed appropriately, that is, haloperidol. Second, if Dr. Ip discounted any formal disorder or illness, as in his evidence he said he did, why did he prescribe a powerful anti psychotic drug such as haloperidol. Dr. Connell noted that Dr. Ip himself said he was comforted by the fact that haloperidol was appropriate for his two provisional diagnoses.

99. Dr. Ip accepted that he did not carry out a complete examination in the morning. Mr. Chan was not sufficiently forthcoming. He was laconic. It seems to me, as to Dr. Connell, that that matter alone should have given Dr. Ip reason to pause before reaching his conclusion. Fortunately, Dr. Ip was able to see his patient again in the evening. Whether he properly took advantage of this opportunity remains to be seen.

100. It is important to remember that, in the morning, Dr. Ip had no inkling of what was to happen in the evening or the consequences thereof. It is easy to understand therefore why he acted and decided as he did. I do not think I am being unfair to Dr. Ip when I say he was probably comforted by the fact that Mr. Chan appeared in no distress; that he had a loving family to care for him, in particular, a trained nurse in attendance; and that he was seen regularly by his doctor. Dr. Ip could be confident therefore that if there were any developments, to put it neutrally, Mr. Chan would be unlikely to come to any harm and would be referred back to him. Dr. Ip would then have an opportunity to reconsider his assessment of Mr. Chan, an opportunity that arose earlier than anticipated. In the meantime, Dr. Ip prescribed haloperidol as an appropriate medication to get Mr. Chan eating and sleeping properly.

101. I do not think Dr. Ip can be fairly criticised for what was a wholly pragmatic approach. I understand why Dr. Wong supported him. With hindsight, however, the picture painted by Dr. Connell is very alarming. And Dr. Connell fairly accepted that he had the benefit of hindsight.

102. I have already found that Mr. Chan did not suffer a stroke, CVA or TIA (I will simply refer to these as a stroke). That this was reported to and noted by Dr. Ip, however, remains of significance because it was not in dispute that a stroke can bring about the onset of dementia, although it is generally the cumulative effect of a serious of strokes. Dr. Connell went as far as to suggest that a psychiatrist faced with an elderly person having a history of a stroke should go straight to an extended cognitive examination. Doubtless that is sound advice in the sense that a psychiatrist should be particularly on the alert in such a situation, but in the end it must be up to the psychiatrist to proceed as his experience applied to the circumstances dictates.

103. Dr. Connell attempted a postmortem of Mr. Chan's condition, a procedure not uncommon in cases such as these where a psychiatrist has usually not been present at the execution of the will. He was of the opinion that Mr. Chan was probably suffering an organic brain syndrome but could not be more specific without having carried out a full examination and tests. For this opinion, Dr. Connell relied upon a variety of factors which can be put in a number of groupings:

1. Physical health: including the pre-existing stroke and nephrotic syndrome and in the evening of 9th January, shortage of breath, tremor and ultimate collapse with pneumonia so as to become seriously ill.

2. Character changes: including shortness of temper, stubbornness and being difficult to manage or approach

3. Particular incidents: including the failed banquet and not sleeping, eating and drinking for a night

4. Dr. Ip's notes and report: to the effect that Mr. Chan was laconic, suspicious and denied that anything was wrong and the possibility of delusions because Mr. Chan expressed a desire "to help his country" and "disliked giving anything to his wife"

5. The provisional diagnoses and prescription of haloperidol

6. The nurses admission notes: to the effect that Mr. Chan was sleepy and unclear (Dr. Connell thought he had seen a translation of these notes as Mr. Chan being drowsy and not lucid. This source has not been traced)

7. The apparent absence of the elements of a mental state examination

104. Painted thus the picture of Mr. Chan on 9th January is pretty grim. At least in the morning, Dr. Ip attributed the changes and problems to Mr. Chan adjusting to his loss of independence, to the loss of old friends and to the usual concomitants of old age. Dr. Connell said Mr. Chan's symptoms cannot simply be brushed off in this way.

105. According to Dr. Connell it is not uncommon in early dementia to see a person reading or watching TV. If interrupted, however, he would over-compensate. Bad temper and stubbornness are typical of early dementia so that investigation is called for.

106. Dr. Connell had support from Dr. Ng. Dr. Connell had sought to rely on what was a misunderstanding of Dr. Ng's evidence to the effect that Dr. Ng had noted slowness of speech in Mr. Chan. In fact, this was drawn to Dr. Ng's attention in cross-examination in conjunction with Mr. Chan's incontinence and changes of mood which, Dr. Ng agreed, could be consistent with a stroke. In answer to a further question that mood changes are a quite common consequence in such circumstances, Dr. Ng volunteered that in an elderly person all those matters could be dementia coming in.

107. In my judgment, on 9th January there were indications that Mr. Chan was suffering from an organic brain syndrome and if so it is likely that it would have been dementia in its early stages.

Haloperidol

108. Haloperidol is an old drug. It is a powerful anti psychotic, widely used in psychiatric medicine, particularly for schizophrenia. It also has a mild sedative effect so that it is useful in the treatment of elderly patients where calming but not sedation is required. It is frequently administered to patients who are agitated or excited. The patients are calmed so that they are neither a danger to themselves nor a disruption to persons around them.

109. Henry's case is that haloperidol, in exercising its sedative effect, simply reduces the patient's level of arousal. When reduced beyond a certain level, the patient's performance, that is in his thinking or cognitive functions, is also reduced until eventually the patient become so sleepy or drowsy he cannot function at all. The patient's performance is reduced but not impaired in the sense of becoming faulty. Rather, it is slowed down. The patient will think and react more slowly but answer the problem or exercise his judgment in the end. He remains perfectly aware of what he is doing and why.

110. Therefore, even if Mr. Chan was or remained affected by haloperidol in the evening of 9th January, the effect was to slow down his thinking not to impair or distort it.

111. Lily's case is that haloperidol directly affects the thinking process so that it may be impaired. The dose given to Mr. Chan was such that he almost certainly was and remained affected and that, with or without an underlying psychiatric illness, his cognitive functioning was impaired when he made his will.

112. There was a wealth of detailed evidence about haloperidol. Dr. Bernard Cheung for Henry and Professor Julian Critchley for Lily, both clinical pharmacologists, explained its nature and effect. This was supplemented by Professor Wong particularly and Dr. Connell who added the benefit of their knowledge and experience in using haloperidol.

113. The result I have to say was bewildering and emphasized the fact, as Dr. Cheung acknowledged, that how haloperidol works is imperfectly understood. In its primary anti psychotic role, it is thought to affect a particular pathway in the brain and block its dopamine receptors. But it affects other pathways indiscriminately hence its various well documented side-effects, one of which is mild sedation. Given the power of this drug, it forms an unlikely basis, it seems to me, for the position taken by Professor Wong that it does not affect cognitive functioning at least so as to impair it.

114. Professor Wong explained his position by distinguishing between quantitative variation and qualitative deviation. As I understand it, quantitative variation is the effect of a drug on one area of function, in that it is improved or reduced, that is, performance of activities such as memory or thinking. Qualitative deviation is where, for example, a state of impaired consciousness is induced.

115. Professor Wong sought to illustrate this by reference to the state of arousal upon which a sedative drug has effect. The sedative reduces arousal along a curve from hyper arousal at one extreme to sleep at the other. At the top of the curve, the sedative will begin to slow down a person's thought processes until they become so slow they are not functioning. Professor Wong asserted that the functions are slowed but not so as to amount to cognitive impairment.

116. I find all this difficult to understand and to accept, particularly as textbooks to which I was referred appeared to contain no formal distinction between quantitative and qualitative and do not couple these adjectives with variation, deviation or any other noun in particular. Lishman in Chapter 1 dealing with 'Cardinal psychological features of cerebral disorder" says at p.5 in dealing with "Delirium"

"In the UK the term is usually reserved for patients whose acute cerebral disorder has resulted in some degree of disturbed or disruptive behaviour, i.e. to describe a syndrome of impairment of consciousness which is accompanied by intrusive abnormalities derived from the fields of perception and affect. Thus consciousness is not merely quantitatively reduced, but also qualitatively changed. Typically the patient becomes preoccupied with his own inner world which is distorted by illusions, hallucinations and delusions, and by powerful affective changes derived therefrom or more directly from dysfunction of specific brain systems. Though conscious awareness of external events is impaired, arousal is high enabling these productive symptoms to occur, and accordingly psychomotor activity is usually increased in the form of restless and excited behaviour."

117. Lishman goes on to "the clinical picture of chronic organic reactions" which include dementia and says at p.14 under "Thinking"

"Thinking is impaired both qualitatively and quantitatively. It becomes slow and laboured, with reduced powers of concentration and ready mental fatigue. The content of thought is impoverished with fewer associations, inability to produce new ideas, and a tendency to dwell on set topics and memories from the past. Themes are banal and stereotyped, and perseveration is usually marked. The ability to reason logically and to manipulate concepts is impaired, likewise the ability to keep in mind various aspects of a situation simultaneously. Specific skills such as calculation are usually impaired from an early stage. "

118. It is clear that these terms have no technical psychiatric meaning but are used in their everyday sense. And as with most matters in psychiatry, as far as I can determine, there is no distinct line between them. It is as always necessary for an examination to be conducted in order to conclude whether or not there has been an impairment. It is not possible simply to say that a certain drug, like haloperidol, only has a quantitative effect and go no further.

119. In any event, I think Professor Wong was really swimming against the tide of psychiatric opinion. He was astute to point out that no psychiatric literature lists impaired cognitive function as a side-effect of haloperidol. That is true, but ignores the fact that literature contains certain references, such as Salzman, Clinical Geriatric Psycho-pharmachology, 2nd Edition, where at p.85 in dealing with the side-effect of sedation in neuroleptic drugs he says

"However, because metabolism and excretion of neuroleptics is delayed in elderly patients, sedation persists for many hours after the drug has been administered. In addition, since regularly prescribed neuroleptics accumulate due to slowed metabolism, sedating effects that persist may ultimately interfere with the older patient's level of arousal throughout the day. Sedation may therefore impair the mental functioning of elderly people and may increase confusion and disorientation of the older patient with dementia. High-potency neuroleptic drugs producing little sedation thus have an advantage for many elderly patients who require sustained neuroleptic treatment.

Although the sedative effects of neuroleptics may be therapeutic, oversedation in the elderly is more common with sedating neuroleptics and may even occur with neuroleptics with minimal sedating effects."

120. ABPI Datasheet Compendium 1995-96 which contains details of various drugs on the market, together with manufacturers' warnings, says of haloperidol

"Some degree of sedation may occur, particularly with higher doses and at the start of treatment. The elderly appear more susceptible. At low doses in susceptible (especially non-psychotic) individuals, haloperidol may cause unpleasant subjective feelings of being mentally dulled or slowed down, dizziness, headaches or paradoxical effects of excitement, agitation of insomnia."

121. Then, in the British Journal of Psychiatry 1990 David King reviewed "The effect of neuroleptics on cognitive and psychomotor function". In relation to haloperidol, he discussed a number of studies which gave conflicting results. He concluded "higher cognitive functions are relatively unaffected" but felt further studies were required.

122. In 1996, in the Journal of Clinical Psychiatry, Stephen Williams and others reported on such a study of haloperidol alone and haloperidol combined with sertraline and concluded "haloperidol produced a clear profile of cognitive impairment, that was not worsened by concomitant sertraline administration".

123. While it is true, as Professor Wong pointed out, that haloperidol was found to have no statistical significance on certain tasks, such as logical reasoning, I do not think that that study can be thus dismissed.

124. Also in that Journal, in 1996, Silva and others in writing on the "causes of haloperidol discontinuation in patients with Tourette's disorder" found "cognitive dulling".

125. Until recently, haloperidol was also used for pre-medication. Textbooks on anaesthetics talk of a patient then being in "a state of apathy" and "mental detachment". It was accepted practice that an informed consent could not be obtained from such patients.

126. I am satisfied that although there is no psychiatric textbook that includes "impaired cognitive function" as a specific side-effect of haloperidol or other neuroleptic drugs, the underlying assumption is that there are grounds for believing that cognitive function may be impaired as a by-product of its side-effects.

127. It is not necessary for me to canvass in any detail the evidence about haloperidol. It is sufficient to say that haloperidol has a half life of about 12 hours; that administered intramuscularly, it has a quicker and stronger effect than if administered orally when part of the drug is absorbed or eliminated by kidney action; that dosage for infirm or elderly patients should be reduced and that 1.25 mg IMI (possibly enhanced orally later in the day) was a significant although not improper dose for Mr. Chan. On its own, that dose may have impaired and may have continued to impair Mr. Chan's cognitive functioning. It is highly likely to have exacerbated any existing impairment due to organic brain syndrome.

128. The resolution of this case therefore largely depends, as always seemed to be the position, upon Dr. Ip. Dr. Ip, as I said, was not an impressive witness. He was often confused. He often contradicted himself. The contradictions were, I am satisfied, a product of disorganisation of thought rather than dissembling.

129. The contradictions and other difficulties with Dr. Ip's evidence were helpfully drawn together by Mr. Kat in his written closing submission. I have them all in mind in forming the view which I have about Dr. Ip.

130. For example, Dr. Ip's report dated 6th November 1996, made almost 7 years after the event, addressed the third criterion laid down in Banks. It did not really deal with the first and not at all with the second, that is the extent of Mr. Chan's property. In evidence, Dr. Ip said "he knew the extent of his property, stocks, real estate and money". The implication is that Dr. Ip had not really understood what was required of him in assessing testamentary capacity until he had been in consultation with Henry's legal team. The same criticism attaches to the report itself which contains the phrase "when asked about other persons who might have a claim on (his assets)". To anyone who has seen and heard Dr. Ip as I have, that report is clearly an unprompted product of Dr. Ip. I attach no importance to this point.

131. Dr. Ip said that because he was afraid that the family's presence might force Mr. Chan into saying 'Yes' about his will, he "virtually pushed them away". Neither Henry, Sara, Chi-kin or Mr. Chung mentioned this. Indeed, Chi-kin said he was with Mr. Chan all along. None of them, however, mentioned Mr. Chan saying that he wanted to give everything to Henry so that his grandson would inherit. Only Dr. Ip gave evidence of that. It is an unlikely thing to have made up. It appears in Dr. Ip's notes. I see no reason to doubt Dr. Ip's evidence. It suggests therefore that Dr. Ip did have a period alone with Mr. Chan. It would not be too surprising if the others had either forgotten this or forgotten to mention it in their evidence.

132. During this private talk with Mr. Chan, Dr. Ip said that Mr. Chan explained to him that he trusted Henry because Henry had been helping him with his banks and stocks for years. Henry's evidence, however, was that Mr. Chan had always looked after his own business affairs. Assuming Mr. Chan said this to Dr. Ip, and again I seen no reason to doubt Dr. Ip, it is an indicator that Mr. Chan was perhaps confused that evening.

133. It is also complained that Dr. Ip, having expressed concern that something might be going on, took no steps to find out if there was. Further, he took no steps to enquire why Lily and Sylvester, who were not there, were being excluded from Mr. Chan's will. I do not think this criticism is justified. Dr. Ip, as I have found, did push the family away to speak privately to Mr. Chan and was satisfied that nothing was going on. Then, Dr. Ip said he asked Mr. Chan specifically about Mr. Chan's wife and children other than Henry. Mr. Chan said he disliked them without giving a reason. He went on to explain his fondness for Chi-kin. So even if Mr. Chan gave no direct explanation for omitting his other children from his will, indirectly he gave a rational explanation.

134. It is not in dispute that Dr. Ip gave Mr. Chan IMI 1.25 haloperidol in the morning of 9th January. Mr. Chan was not agitated. It was common ground that haloperidol is usually only injected when a patient needs urgent calming. Dr. Ip was concerned, however, to get Mr. Chan eating and sleeping properly as soon as possible. He was also concerned that if he gave haloperidol orally, much of its effect might be eliminated by a first pass in the liver. So while Dr. Ip's procedure was perhaps out of the ordinary, it cannot be said to be wholly exceptional. The real mischief lies not in Dr. Ip giving a precautionary dose, because he was still concerned about the proper diagnosis of Mr. Chan, but in the consequences that are alleged to have followed in the evening.

135. I take into account in connection with the haloperidol injection that, as Mr. Kat pointed out, Dr. Ip also prescribed mianserin specifically for sleeping.

136. Finally, in relation to Dr. Ip's shortcomings, Dr. Ip gave Henry another course of haloperidol tablets on 12th January. By then, Mr. Chan was ill in hospital. Dr. Ip cannot have failed to learn of that or certainly should have done. It was wholly improper to prescribe that or any other drug to a patient in hospital at least without consulting the attending doctor. Dr. Ip does not emerge from this criticism without blemish.

137. In contrast to Dr. Ip, Dr. Connell was a clear and coherent witness who raised in my mind real concern about Mr. Chan on 9th January, a concern that I could not lightly dismiss. I find Dr. Connell's evidence very helpful. I have to say, however, that I thought his approach to be a little too academic and inflexible. The thrust of his evidence was that nothing less than a careful adherence to the method set out in Salzman for conducing a cognitive function examination will suffice for coming to a proper diagnosis. He did not seem prepared to accept that a psychiatrist who is aware of the appropriate criteria can form a diagnosis at least in part by watching and listening to a patient simply interacting with himself and others without asking the usual questions or performing in detail all the tests which Salzman prescribes. It seems to me that the status of a patient's memory and orientation, for example, can very well be ascertained by such a process.

138. There is no doubt that Dr. Ip fell short of the ideal in the notes he made of his examination of Dr. Chan in the evening. In Buckenham v. Dickenson and Others, a decision of Judge Cooke sitting as a judge of the High Court in the Chancery Division given on 25th February 1997, the judge said at p. 12

"There is one other group of authorities to which I should briefly refer before I consider the facts, and that is two authorities, both decisions of Templeman J. as he then was. One is Kenard v. Adams 1975 The Times 29th of November, and the other is Re: Simpson, Sehaniel v. Simpson, 1977 121 SJ 224, (incorrectly referred to as a decision on an originating summons, which it was not), and a case of which I am somewhat familiar as I appeared in it as Counsel for the unsuccessful side. In both of those Templeman J. was concerned with what happens when solicitors take instructions from elderly and infirm testators, and in Simpson he said this:

"The events of this case, which involve the disputed will of an old and infirm testator, ..."

and then repeated the warning he had given in Kenwood v. Adams that the making of a will by such a testator ought to be witnessed and approved by a medical practitioner who satisfies himself to the capacity and understanding of the Testator, and makes a record of his examination and findings. He hoped the Law Society would consider whether sufficient guidance was afforded to students and practitioners.

Now of course what Simpson does not say, although counsel tries to submit that it does, is that a failure to observe the golden rule will invalidate the will; it says nothing of the kind, but it points very starkly to the problems that professionals face when they are drawing wills and they do not take these precautions or precautions as near to them as the practicalities require."

139. If Dr. Ip had recorded in detail what he had done and heard and, in particular, made reference to the three criteria set out in Banks, this trial may never have taken place. But I have to face and accept the real world in which few practitioners, be they solicitors or psychiatrists, have experience or a complete knowledge of what to do in a situation such as this case.

140. Professor Wong accepted that Dr. Ip's record left something to be desired. Dr. Ip did, however, make a record of his visit, a record which notes Mr. Chan's new physical difficulties and which gives an indication that Dr. Ip was aware of and explored, at least to some extent, the first and third criteria of testamentary capacity. But as Dr. Ip said, it is not his practice to record matters which are satisfactory rather to record those which might be of some significance or problematic.

141. As to the second criterion, Dr. Ip in evidence referred to "extent of property". That was perhaps not very precise. But I am entitled to look at the overall picture. There is no dispute that Mr. Chan's property consisted essentially of his flat, and money and shares in his various bank accounts. There was evidence from Henry that, at Mr. Chan's request, Henry had been actively involved in negotiating on behalf of Mr. Chan the redevelopment of the block of flats in which Mr. Chan's flat was situated Henry had resisted Mr. Chan's suggestion that the flat should be assigned to him for this purpose. Henry also said that, while he was in hospital, Mr. Chan had no difficulty in giving the names of the banks holding his accounts. From all this, it seems to me that Mr. Chan was well aware of what he was disposing. I am not deflected from that view by the fact that, the day before, Mr. Chan had been mistaken about or unaware of the amount of money in one of his bank accounts.

142. Dr. Ip was a qualified and experienced practitioner. He had experience of geriatric patients even if virtually no experience of testing for testamentary capacity. He was familiar with routine and extended cognitive state examinations. He accepted that his morning examination was not as thorough as he would like. He asserted, however, that in the evening he did perform a proper examination although he could not recall the details of the questions which he asked. He was clear that at one stage he moved other people away so that he could speak to Mr. Chan in private. He concluded that Mr. Chan was attentive and understood what he was doing and to whom and why he was leaving his property.

143. I conclude that immediately prior to execution of his will, Mr. Chan was seen by an experienced psychiatrist who carried out a sufficiently thorough examination to be able properly to find that Mr. Chan had testamentary capacity. Although I would be happy to give judgment on that basis alone, I believe it is appropriate to add that Dr. Ip's finding is supported by the evidence of Henry, Sara and Chi-kin of Mr. Chan's condition as observed by lay people both before, at the time of, and after the making of the will. While they certainly had interests of their own to serve, their factual evidence was not really challenged and rightly so. The finding is also supported by the evidence of Mr. Chung who was certainly a disinterested party and who was impressed by Mr. Chan's firmness. And, not least, neither Dr. Ng nor Dr. Sham had any concerns about Mr. Chan's mental state.

144. Finally, the substance of the will is entirely rational given the history. Mr. Chan's wife had left him years before. In so far as Mr. Chan disliked her or disliked giving to her, any other sentiment might be more remarkable. Mr. Chan had already made some provision for Sara and Sylvester. That he made no provision for Lily is also understandable. He no doubt regarded her as a perfect nuisance. It is true that Lily's telephone records show that, between 25th August and 4th November 1989, Lily called Mr. Chan's number 5 times. There was no evidence of any calls before August. But one of the calls, on 30th August, lasted 49 minutes. It occurred 2 days before Mr. Chan, helped by Henry, went to a district office to make a statutory declaration that had the effect of reducing Lily's age. This was at Lily's request, to enable her to pursue a career in the entertainment business. According to Henry, Mr. Chan did this only after lengthy discussion with Henry. I hardly regard these records as demonstrating regular contact between Lily and Mr. Chan or as evidence of affection between them.

145. There will be judgment for Henry. I pronounce for the will in solemn form. Subject to any requisitions which may be raised by the Registrar, probate is to be granted to Henry.

146. I make an order nisi that Lily is to pay Henry's costs.

147. Lily's own costs are to be taxed.

Representation: