KWOK SHUK KUEN MARIA AND ANOTHER v. LI WUN AND ANOTHER

HCAP 8/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2011

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J U D G M E N T

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INTRODUCTION

1.  The plaintiffs are the executors of the will of the late Kwok Wing Fai, who passed away in Hong Kong in June 2010 (aged 86) (respectively (“the subject will”) and (“the dec’d”)); the subject will was dated 26 April 2010.  The plaintiffs commenced this action in March 2011 seeking the court’s pronouncement for the subject will in solemn form because caveats were entered earlier.

2.  The claim is opposed by the defendants, who contend in their amended defence and counterclaim in gist that:

(a) the subject will was materially different from the dec’d’s verbal instruction given on 23 April 2010 (about 3 days before the subject will’s date) (“the Hok Lo instructions”) (see para 45(d) to (f) below for details of the Hok Lo instructions);

(b) the dec’d was critically ill at the time of, and immediately before, the subject will.  His ailment and/or treatment have had an adverse effect on his mental capacity and/or testamentary intention;

(c) the 2^nd plaintiff (“P2”) was trusted by the dec’d and P2 abused that relationship and unduly influenced the dec’d into making the subject will;

(d) by reason of sub-para (a) and/or (b) and/or (c) above, the dec’d did not know, or approve of, the subject will’s contents;

(e) further, if the dec’d knew, or approved of, the subject will’s contents, he did not make the subject will of his own free will, being unduly influenced by P2 to do so.

3.  By virtue of the above matters, the defendants not only deny the claim, but also counterclaim for the subject will to be pronounced against, and for the 1^st defendant (“Mdm Li”) to be granted a letter of administration (on the dec’d’s intestacy).

BACKGROUND

4.  The dec’d and Mdm Li were married to each other.  There are 6 children born out of the wedlock: two sons and four daughters.  The plaintiffs are respectively the first (eldest daughter) and third (second son) children.  The 2^nd defendant is the second child (eldest son) (“D2”).

5.  It is obvious the family (besides the dec’d) has regrettably broken into two camps (and the parties do not dispute the break): Mdm Li and D2 on one side and the other children on the other side.

6.  The dec’d came from a humble background.  He received a few years’ Chinese-style tuition (私塾教育), then left the Mainland for Hong Kong in the 1950s, and began his work here as a labour carrying rice. It was probably because of the dec’d’s life-time hard work the egg business he operated, one “Shun Hing Hoo”, becomes one of the leading operators in the trade (“the dec’d’s business”).  While there is dispute as to the extent of Mdm Li’s contribution to the dec’d’s business, it is common ground P2 has for some time before the dec’d’s death been helping the dec’d in that regard. Because of this, P2 was trusted by the dec’d.

THE DEC’D

7.  Although the dec’d has relatively little formal education, that he was a person of strong-will and shrewdness is at least partly reflected by his business success, and the accumulation of some wealth.

8.  He suffered from chest pain in September 1998, and was unfortunately diagnosed with terminal lung cancer in November 2009. From then on, he alternated between staying at home (where he lived with Mdm Li) and in hospital until his death.  The dec’d was undergoing chemotherapy shortly before his death, and has to rely on external oxygen supply before, at the time of, and after, the subject will until he passed away.

THE SUBJECT WILL

9.  Who came up with the idea of making the subject will (the dec’d or P2) is disputed in this action.  What is undisputed is that in late-April 2010 P2 approached a solicitor who he became acquainted with through property deals, one Mr Lau (“Lau”), to prepare a will for the dec’d (which led to the subject will).

10.  Shortly later, on 26 April 2010, Lau engrossed the subject will and had it executed and witnessed at the hospital (where the dec’d was staying at the time).

11.  In relation to the distribution of the dec’d’s estate, the contents of the subject will are in essence:

(1) $8 million is to be held on trust for the purpose of keeping “fungshui”, and keeping in good order and repairing the ancestors’ grave(s) and gravestone(s);

(2) the dec’d’s shares in a Gold World Investments Ltd (“Gold World”) are to be distributed as follows:

(1) each of the 4 daughters is to be given 20% thereof;

(2) each of the 2 sons (that is, D2 and P2) is to be given 10% thereof;

The principal asset of Gold World is half-share of the shop premises from where the egg shop is operated (“the Sheung Wan property”);

(3) the dec’d’s residuary estate is to be divided into 80 shares and to be distributed as follows:

(1) Mdm Li is to be given 12.5% thereof;

(2) each of the 4 daughters is to be given 12.5% thereof;

(3) each of the 2 sons is to be given 18.75% thereof.

12.  Save that the subject will was drafted by Lau (with the assistance of his staff), the manner in which the dec’d’s instructions were obtained, and the other circumstances under which the subject will came to be drafted and executed form part of the factual dispute in this action.  They will therefore be discussed in the paragraphs below.

THE DEC’D’S OTHER ASSETS

13.  For the purpose of this action, they are:

(a) the dec’d’s business (para 6 above);

(b) the dec’d’s real properties in the Mainland.

14.  The dec’d’s business was transferred from the dec’d to P2 by way of a business transfer agreement dated 24 April 2010 (“the business transfer agreement”).

15.  The documents concerning the dec’d’s Mainland real properties which have been referred to in this action are:

(1) a document with the heading “Will” and dated 28 June 2009 executed (or, according to the defence, purportedly executed) by the dec’d in the Mainland (“the Mainland will”). The Mainland will passed the property located at Yunling (雲嶺) (“the Yunling property”) to P2 upon the dec’d’s death;

(2) an undated document also headed “Will” executed by the dec’d in the Mainland around January 2010 (“the undated will”). The undated will passed the Yunling property and the property located at Lianhe (聯河) to P2 upon the dec’d’s death (“the Lianhe property”).

(the Yunling property and the Lianhe property are collectively “the Mainland properties”)

WITNESSES’ CREDIBILITY

16.  As can be seen from the above paragraphs, the main disputes are factual in nature. 

17.  Further, over many events two conflicting factual versions have been put forth by the parties herein.  The conflict is so drastically different that it cannot sensibly be attributed to mistake.  Thus, reliability is not in issue (reliability here refers to a witness’ ability to observe, recall and recount the relevant factual events accurately); instead, the issue to be resolved is essentially one pertaining to credibility.  An assessment of the witnesses’ credibility is thus crucial to a proper resolution of these factual disputes.

18.  For ease of reference, the approach I adopted in earlier decisions when assessing the credibility is repeated:

“The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

‘There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest’.

(See, for example, the decisions in Chiu Chi Tong v. Lau Chong Sai & Another, HCA 765/2002 (para. 28) and Yu Ming Investment Ltd. v. Pang Ru Chuan, Richard, HCA 814/2002 (para. 13))”

(Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12).  The same approach will be adopted in this action.

19.  Finally, I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales [2008] EWCA Civ 424 (28 April 2008), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50).  The impermissible approach was described in the ATB Sales judgment as follows:

“ … a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory … it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause … the concept of proof on a balance of probabilities had to be applied with common sense … ” (para 3 thereof).

(a) Plaintiffs’ witnesses

20.  The plaintiff called a total of 9 witnesses, including:

(a) the 1^st plaintiff (“Maria Kwok”);

(b) P2;

(c) Lau;

(d) Dr Fong, the cardiologist who treated the dec’d until the dec’d passed away;

(e) Dr Tsang, the clinical oncologist who treated the dec’d until the dec’d passed away.

The above doctors assessed the dec’d’s mental condition on 26 April 2010.  Of the other 4 witnesses, 3 were the sisters of P2 and D2.

21.  As a general observation, I find the plaintiffs’ witnesses to be truthful and credible.

22.  The defence launches its main attack against P2.  He was extensively cross-examined on various matters.  One topic emphasized by the defence is the way in which:

(1) the Mainland properties were dealt with.  This includes not only their dealings after the dec’d’s death, but also the documents executed by the dec’d regarding those properties before his death;

(2) the dec’d’s business was transferred to P2 during the dec’d’s lifetime;

(3) P2 dealt with the above assets after the dec’d’s death.

The defence relies on these as evidence of P2’s undue influence on the dec’d (but note also para 76(d) below).

23.  During the cross-examination of P2, the defence put forth a case that P2 began “eyeing at” the dec’d’s estate since 2009, and that P2 used a “drip-drip” approach to achieve his objective of securing the dec’d’s assets for himself.  The matters set out in para 22(1) and (2) above were put forth as evidence showing the step-by-step implementation of that scheme.  P2 was said to have influenced the dec’d by:

(a) abusing the trust the dec’d placed upon P2 as a result of the close working relationship between them;

(b) bad-mouthing the defendants in front of the dec’d,

thereby succeeded in luring the dec’d to execute various documents (including the subject will) to pass to P2 most of the dec’d’s estate.

24.  It was then pointed out to the defence that such a case (which suggested a considerable degree of pre-meditation and planning (and probably also some sophistication)) does not appear to sit well with a term in the subject will which reads:

“I REVOKE all my former wills and testamentary dispositions heretofore made by me” (clause 1 thereof).

The documents for disposing the Mainland properties (especially the Mainland will and the undated will) were all dated before the date of the subject will.  Consequently, there is (at least) a high risk that the part of P2’s testamentary scheme before 26 April 2010 would be frustrated by it (assuming Mainland law is the same as Hong Kong regarding the effect of a testator’s last will on his earlier wills).

25.  In their written closing submissions, the defence rather paints P2 as someone who:

“… worked himself towards establishing the image of a hard-working, diligent son”,

and that:

“[having gained the dec’d’s trust and thereby being able to abuse that trust] [P2] was scared of being caught”.

The written closing submissions continue:

“Once his misdeeds were exposed, he would try to distance himself, and renounce his gains to stay out of it … ”.

(para 4(2) thereof) (it should be noted the first quote still implies P2 to be scheming enough to have conceived, and implemented, a plot for years, if not decades).

26.  Because the case summed up in para 25 above only appears in the written closing submissions, it was not put to the plaintiffs’ witnesses (including P2) during cross-examination.  As a result, it has not been made clear when (and how) P2’s “scheme” was “exposed”.  Because the subject will (the document through which P2 supposedly distanced himself) was executed on 26 April 2010, logically the “discovery” of P2’s “scheme” should have taken place sometime before then.

27.  Here the case summed up in para 25 above falls into difficulty again, because it has been the defence case the improperly obtained testamentary documents (especially the Mainland will, the undated will and the subject will) only became known to the defendants (which must be what the defence means by “being exposed”) much later than 26 April 2010.

28.  The other point relied upon by the defence regarding the assets set out in para 22(1) and (2) above as evidence of P2’s misdeed is the secrecy of the related documents.  The explanation given by some of the plaintiffs’ witnesses regarding the subject will is that the subject will was personal to the dec’d (and hence no one else is entitled to know about it).  I find no valid reason to disbelieve this part of their testimony (especially taking into account para 29 below).

29.  As regards the Mainland properties (and how they were dealt with by the Mainland will and the undated will), it is true no particular reason has been given as to why the Mainland will and the undated will were kept unknown to the defendants.  Several matters should however be noted.  First, the totality of the evidence suggests that the dec’d could not have been too fond of either of the defendants: Mdm Li was a wife who, though living with him under the roof, asked that the dec’d’s eating utensils be separated from hers for alleged health-related reasons, while D2 was admittedly a son who not only decided not to put his efforts into the dec’d’s business, but was also never quite commercially successful in his own business pursuit.

30.  Further, the following matters may provide equally innocent reasons for such secrecy:

(1) the dec’d’s affairs in the Mainland, whether business-related, or personal, have apparently been taken care of by P2 (and no one else of the dec’d’s immediate family (including the defendants));

(2) further, at least the Lianhe property has been related to a lady in the Mainland, whose relationship with the dec’d is not precisely known (although there were unspecified suggestions that the dec’d was close to her).  P2’s testimony (not really challenged on this point) is that the dec’d asked him to allow the lady (and her boy) to use the Lianhe property.  Finally, the lady (and her boy) does not appear to be a matter openly discussed among the family members even during the dec’d’s lifetime.

Such being the case, nothing sinister can properly be inferred out of the non-disclosure by the dec’d and/or P2 about these matters.

31.  One of the sister witnesses testified to the effect the dec’d earlier did not like the topic of preparing a will for himself being raised.  This could well be a (or even, the) reason why the subject will (and perhaps also the business transfer agreement) were only executed after the dec’d’s treatment has been assessed to be ineffective to cure his cancer. Thus, the defence criticism in their written closing submissions to the effect that they were hastily “pushed through” appears to have ignored that aspect, and is an exaggerated, or distorted, view of the real situation (see para 5(3) and (4) thereof).

32.  The defence also criticizes P2 for having fabricated some parts of his testimony (such as, when P2 contact Lau for the business transfer agreement (and whether it has been interpreted by Lau), the date when some of the documents relating to the Mainland properties were fax transmitted to the Mainland, and whether the Mainland workshop of the dec’d’s business belonged to P2 or the dec’d’s business: para 10, defence written closing submissions).  There is no need to discuss each point in detail, suffice it to say I do not find them (whether individually or collectively) to affect my assessment of P2’s credibility by reason of these being the result of error of memory, or were trivial and/or too remote from the issues in this action.

33.  The sisters have practically no role in relation to the Mainland will, the undated will or the subject will.  In the defence written closing submissions, they were described as:

“… [siding] with [P2] against [the defendants] – hence they care very little if [P2] is to do anything at the expense of [the defendants] … While they are not accomplices it explains why [P2] can pretty much dictate his way … ” (para 11 thereof).

34.  That the sisters sympathize with the plaintiffs have been noted (para 5 above).  However, the important issue of whether the sister witnesses have given credible testimony has not been expressly addressed in the defence written closing submissions.  Upon being asked of that issue, the defence accused them of being dishonest witnesses who gave false testimony to assist the plaintiffs’ case.  No basis has been provided however to support such an accusation.

35.  Of the various matters they testified to, it is important they agree with the plaintiffs in effect that:

(a) the dec’d’s did not use the Hok Lo dialect, but rather used the local dialect during his daily life, for as long as they could remember;

(b) (in relation to one of the sister witnesses which the defence said had heard the Hok Lo instructions) she never heard the dec’d giving the Hok Lo instructions.

I do not find any valid reason to accept the defence accusation of dishonesty (and reject it as unfounded).

36.  The two doctor witnesses have been accepted to be independent and honest witnesses.  Besides testifying to the dec’d’s mental state at the time of the subject will, they testified to, and were cross-examined about, the dialect used by the dec’d.  They both confirmed that their verbal communications with the dec’d used the local dialect, and none of them have experienced difficulties in that regard.  Another issue raised by the defence is the adequacy of the doctors’ assessement; because this is not credibility-related, it will be discussed under a separate heading below.

37.  Lau and his assistant, one Ms Wong (“Wong”), were the witnesses who attested the subject will; they were also responsible for drafting the same.  Criticisms have been directed by the defence particularly against Lau:

(1) had it not been for the business transfer agreement, the dec’d’s business would have become part of the dec’d’s estate;

(2) Lau omitted to find out the market value of the dec’d’s business; the contractual value for the transfer ($10,000) was obviously a nominal value;

(3) Lau did not personally explain the business transfer agreement to the dec’d;

(4) instead of contacting, and communicating with, the dec’d directly, Lau allowed P2 to be the initial and/or primary point of contact, thereby affording opportunities for P2 to unduly influence the dec’d. The same deficiency was also caused by Lau allowing P2 to be present during Lau’s meeting with the dec’d;

(5) Lau omitted to find out the dec’d’s Mainland properties;

(6) Lau also omitted to find out the dec’d had executed the Mainland will and the undated will;

(7) further, clause 1 of the subject will (see para 24 above) was inserted without specific instruction from the dec’d to revoke the Mainland will and the undated will;

(8) Lau failed to consider and/or advise the dec’d clause 5(1) of the subject will (which provides $8 million for keeping good “fungshui” and grave-maintenance) may be legally invalid;

(9) overall, Lau never took any particular step to safeguard the interest of the dec’d.

38.  The criticisms set out in para 37(1) to (3) above are a red-herring.  As can be seen in para 45(f)(1) below, even on the defence own case, the dec’d intended that the dec’d business should be passed to P2.  This is only natural in view that (there is no dispute about this) P2 has been assisting the dec’d’s business for a long time, and has been trusted by the dec’d.

39.  Para 37(4) above is unmeritorious because Lau has in fact personally visited the dec’d before the subject will was drafted, and explained the subject will to the dec’d before the dec’d executed it.

40.  Para 37(8) above is irrelevant to the issues of this action.  Even if it is a correct legal proposition (which does not fall for determination herein), it can only reflect on Lau’s faulty legal knowledge in drafting wills.  Para 37(9) above is too general and unspecific.

41.  As regards para 37(5) to (6) above, it is true that more careful probate practitioners may have also enquired a testator about these matters.  However, they do not by themselves necessarily assist (or not assist) either party’s case herein.  To avoid doubt, I have borne them in mind when considering the dec’d’s testamentary capacity and intention.

42.  In view of para 39 above, there is no evidential basis for saying that there was no specific instruction for inserting clause (1) of the subject will (para 37(7) above).  Similar to what has been about para 37(5) to (6) above, para 37(7) above has been taken into account when considering the dec’d’s testamentary capacity and intention.

(b) Defence witness

43.  Only D2 testified for the defence.  Mdm Li also attended court, but her legal representatives finally decided she should not testify.  No point has been raised by the plaintiffs arising out of her failure to do so.

44.  I have no hesitation to find that D2 is an untruthful witness.  His testimony is riddled with concessions and contradictions which make his testimony (which purports to support the defence case) incredible.  I will not set them out exhaustively.  Below are some examples.

45.  Contrary to what the written closing submissions assert, the defence case is not put forth on the basis of putting the plaintiffs to proof.  Instead, the defence puts forth a positive case that the dec’d’s true testamentary intention is to be found in the Hok Lo instructions. The details of this are:

(a) the dec’d was hospitalized on 23 April 2010. When the defendants visited him, one of his daughters was there together with the lady who took care of the dec’d;

(b) upon seeing the defendants, the dec’d requested the said lady to remove the breathing mask so he could speak to them;

(c) after the mask has been removed, the dec’d spoke to the defendants in the Hok Lo dialect;

(d) the dec’d told the defendants the Sheung Wan property would be transferred to them so that Mdm Li could continue her business of selling preserved eggs there to earn her living.  Further, D2 would also have to run his own business to do so;

(e) the dec’d also said that, should their businesses not do well, they could still get rental income from the Sheung Wan property.  He instructed them the Sheung Wan property should not be sold;

(f) as regards the dec’d’s business and his other assets, the dec’d said:

(1) the dec’d’s business should be inherited and carried on by P2;

(2) his other assets should be distributed equally among Mdm Li and the children.

There is also an allegation of undue influence (para 2(c) and (e), 22 and 28 to 30 above, and 67(2) to 68 and 76(d) below).

46.  It is undisputed the contents of the subject will were announced to the dec’d’s immediate family (including the defendants (D2 through Mdm Li)) in late-June 2010.  Despite this knowledge (and knowledge of the Hok Lo instructions), the defendants instructed Messrs WK To & Co (which are also the solicitors for the defendants herein) (“WK To”) to write on 3 September 2010 (about 2 months after the will announcement) as follows:

“We are instructed that [the dec’d] died on 11 June 2010, and executed [the subject will] prior to his death, which is now valid and enforceable. Pursuant to the terms of [the subject will], [D2] shall inherit 150,000 ordinary shares in [Gold World] … ” (emphasis supplied).

It should be noted the said letter was not marked “without prejudice” nor did it reserve any of the defendants’ rights of succession.

47.  Two points can be made out of the contents of the said letter: one, the validity and enforceability of the subject will was expressly accepted; two, further to such acceptance, D2 in fact relied on its terms to assert his share ownership.

48.  It is only to be expected that D2 was cross-examined at trial about the above.  This part of his testimony can only be categorized as a lame attempt to explain away an inconsistency which is inexplicable (other than as evidence of untruth):

(1) D2 claims that initially he and Mdm Li sought assistance from another solicitors firm.  It was the opinion and advice of that firm that the plaintiffs had prepared the subject will so well it would be better for the defendants to try to settle the matter with the plaintiffs;

(2) although D2 has not said so clearly, the implication of his above claim must be that the former solicitors had been informed of the Hok Lo instructions (hence their advice that “the plaintiffs had prepared the subject will well” and “better for the defendants to try to settle”);

(3) such being the case, when the defendants later sought assistance from WK To, they can be expected to also inform WK To of the Hok Lo instructions;

(4) here again D2’s testimony is vague, without expressly stating whether the defendants in fact did so, he testified that those in WK To who initially dealt with their case were solicitors from the commercial department;

(5) (in view of sub-para (1) to (3) above) such testimony can only be relevant if (again) it implies that the defendants in fact informed the commercial lawyers of the Hok Lo instructions, but they either failed to appreciate its litigation significance, or, having so appreciated it, failed to handle it suitably by using the appropriate language in the said letter.

49.  The fact that:

(i) WK To still act for the defendants herein (and that defence counsel sees fit for them to do/remain so); and

(ii) no one from that firm accepts responsibility for the failure to contest the subject will in the 3 September 2010 letter,

militates against any possible deficiencies in WK To’s handling of the defendants’ case at any stage up to now.

50.  Other parts of D2’s testimony also expose the untruth.  During cross-examination, at times he claimed that initially (referring to around July 2010) neither defendant had any suspicion, but they later:

“… discovered more and more that there were indeed lots of doubts … ” (para 45, D2’s witness statement).

D2 could not explain what the defendants have discovered since July 2010 to cause them raise their doubts. At other times, D2 testified that he had doubts “from early on” (“一早”).  Upon being asked to clarify its meaning, D2 said “from early on” meant from May 2010 onwards.  This last testimony makes the solicitors’ letter dated 3 September 2010 all the more implausible.

51.  The only reasonable inference is hence that the defendants did not inform WK To of the Hok Lo instructions until much later. In this connection, it is pertinent to note the two documents below:

(a) a caveat dated 17 December 2010 entered by the former solicitors for Mdm Li (but which does not state the ground of challenge);

(b) a caveat dated 9 February 2011 entered by WK To for Mdm Li which expressly challenges the validity of the subject will.

It can be further inferred from the earlier failure to mention the Hok Lo instructions to their own solicitors that the same was the defendants’ afterthought.

52.  Before leaving the Hok Lo instructions aspect, I pause to note this would also create some dilemma for the defence: if the defence claims that the dec’d lacked testamentary capacity and intention on 26 April 2010 (the date of the subject will), it is likely their case concerning the Hok Lo instructions will suffer the same problem.  D2’s purported explanation that the dec’d mental condition might have suffered because he removed his breathing apparatus from time to time is another lame attempt to mend a poor story, and cannot assist the defence about this point either.

53.  The next matter where there is ample evidence to show D2’s untruthful testimony is the assertion made in his witness statement that:

“[The dec’d] did not know any English and spoke in his mother-tongue, i.e. … Hok Lo Dialect … Upon admission to St. Paul’s Hospital as aforesaid, from what I observed, [the dec’d] had been using his mother-tongue … to communicate with everyone around him, including all the doctors, nurses, his caregivers, his family members and all other visitors except my wife … ” (emphasis supplied) (para 23 thereof).

He changed the above in his supplemental witness statement as follows:

“… [the dec’d] did not know any English and could only speak in his mother-tongue, i.e. … Hok Lo Dialect … or Cantonese” (emphasis supplied) (para 6 thereof).

But the dec’d’s dialect when he was hospitalized otherwise remains as stated in D2’s witness statement (quoted above) (para 7, supplemental witness statement).

54.  First, it is inherently implausible the dec’d (who, according to D2’s supplemental witness statement, could speak both Hok Lo and Cantonese) should speak only Hok Lo while he was hospitalized (where the hospital staff must have been mostly Cantonese-speaking). No reason has been given for such alleged behaviour.

55.  Secondly, all the other witnesses (in particular the doctor witnesses) deny that the dec’d did so; if any of those witnesses have heard the dec’d speaking Hok Lo while in hospital, only short and brief words were uttered on one or two occasions.

56.  There is no need to find out why D2 should contend the dec’d only used Hok Lo while he was in the hospital.  Perhaps he was hoping this would assist his case that possibly there has been mis-communication (or communication breakdown) between the dec’d and the solicitors and/or doctors.

57.  There are other parts of D2’s testimony where he contradicts himself over relatively less important factual matters he relies on; such as the amount of rent which the Sheung Wan property was capable of generating, and the purpose of Mdm Li to ask a relative to go to the dec’d’s home on 20 May 2010 (in D2’s cross-examination, he denied that it was for attesting another will, but in re-examination, he said that it was for that purpose),  I do not propose to set them out in detail suffice it to say they are consistent with my conclusion of D2’s credibility.

THE DOCTORS’ TESTIMONY

58.  The criticisms levied against the doctors focused on the adequacy of their examination of the dec’d’s mental state (and hence the weight which can be attached to the assessment).

59.  Reliance is placed in this connection on Chiu Man Fu and Others v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), para 162:

“In Kenward v Adams, The Times, 29 November 1975, Templeman J (as he then was) laid down what is later commonly referred to as the golden rule : When a solicitor is drawing up a will for an aged testator or one who has been seriously ill it should be witnessed or approved by a medical practitioner, who ought to record his examination of the testator and his findings. … In my view, whenever a medical practitioner is asked to perform a mental state examination on a testator, whether he is aged, infirm or not, he should always keep a proper record of his examination and his findings. He is not doing his job properly if he does not. His failure does not invalidate the contested will … But it does render the retrospective assessment of the examination that he had performed on the testator in subsequent legal proceedings exceedingly difficult, if not impossible … ” (emphasis supplied (according to the support which the defence seeks to get out of this passage)).

The court in the Chiu Man Fu decision nonetheless went on to observe that the doctor’s 18-year observation of the testator’s mental condition to be extremely useful and relevant to whether the testator possessed the requisite testamentary capacity.

60.  I will make two observations concerning the above.  One, as has been often emphasized, judicial comments in judgments and decisions (especially factual ones) normally have to be understood in the proper context in which they were made; seldom were they meant to lay down rules or principles.  Judicial comments such as whether a medical examination should be recorded fall within that category.  Secondly, I understand the above comments about “proper record” of a medical examination to be nothing further than the settled principle about expert evidence that:

“In studying the validity of any opinion based on foreign law, the Court does not simply accept any stated conclusions as being correct, even where there may be no legal opinion contradicting it. The Court is entitled to (and indeed must) look at the basis of the legal reasoning as well as the terms of the State Council Notice in determining what weight, if any, should be attached to the Opinion”:

Full Wisdom Holdings Ltd and Others v Traffic Stream Infrastructure Co Ltd and Others [2004] 2 HKLRD 1016, para 23.  While the above focused on expert evidence on foreign law, the same principle should apply to other areas of expert evidence (including, in the context of this action, expert evidence of the dec’d’s mental condition).

61.  In addition, the more important facts involved in the Chiu Man Fu decision should be noted:

(1) a testator was a successful businessman but who has suffered from chronic diseases (anxiety, diabetes and gastrointestinal problems) and a stroke (in 1998) some 6 years before his death (in 2004 at the age of 55);

(2) the testator executed two wills the contents of which were quite different:

(a) an earlier will (in 1997) where the estate was to be distributed to each of his 14 children then alive (6 of whom became the plaintiffs therein);

(b) a subsequent will (in 2003) where the estate was given solely to his common law wife, to the exclusion of all of his children (this was the contested will);

(3) medical evidence suggesting that the testator suffered from delirium (acute confusional state) or significant cognitive impairment at the time of the contested will.  The suggestion was based on the type of disease he suffered from (cerebrovascular) and the “cocktail of drugs” he has been taking for some time (some of which were psychotropic).

62.  It is immediately apparent those facts are quite different from what is involved in this action.  It is true the dec’d was old and seriously ill at the time of the subject will.  However, one must remember there is no evidential basis (let alone evidence) for suggesting that the dec’d’s mental agility has materially impaired:

(a) neither of the doctor witnesses accepts the suggestion (made during cross-examination) that either the main illness (lung cancer) or its treatment (including the use of pressurized oxygen supply) per se would cause (or have caused) such impairment;

(b) no one has suggested any mis-treatment, or other medical errors or oversights, which would cause (or have caused) such impairment;

(c) the highest that the defence testimony can take it is D2’s vague assertion that the dec’d has from time to time removed the mask which supplied pressurized oxygen because the dec’d disliked the discomfort from using the mask, or because the mask made conversation less easy.  But D2 has not suggested any occasion the dec’d’s mental condition has actually deteriorated as a result;

(d) the defence has adduced no expert evidence at all concerning the dec’d’s mental condition.

63.  Bearing in mind the above, I disagree with the defence that the doctor witnesses’ testimony should not be treated as expert evidence about the dec’d’s mental condition.  The following ought also to be borne in mind:

(1) as is common knowledge, medical doctors have been trained to make assessment of patients’ mental condition as part of their medical diagnosis, and to pay attention to whether the prescribed treatments (including any medication) may have an effect regarding that aspect;

(2) further, medical doctors have the opportunities to observe and assessed their patients’ mental condition in the ordinary course of their practice;

(3) consequently, it can be expected that they would be acutely aware of any abnormality (including impairment) of their patients’ mental condition (especially when they have been specifically requested to do so);

(4) both doctor witnesses in this action have had ample opportunities to observe and assess the dec’d’s mental condition during periods which lasted for months before they were asked to make the assessment.

In so concluding, I have taken into account the general principles that:

(a) expertise is founded on training and experience, and sometimes, depending on the complexity of the area of expertise, founded on familiarity with that area;

(b) as stated above, the defence has (correctly) not disputed the doctor witnesses’ independence and honesty.

(Phipson on Evidence (2013) 18^th Ed, Ch 33)

64.  I therefore regard the defence suggestion that the doctor witnesses should have:

(1) checked the dec’d’s oxygen level before the assessment in the case of one witness, and assessed the dec’d as being mentally deficient in the case of the other witness (who has checked the oxygen level);

(2) administered scanning of the dec’d’s brain (said to be “MR scanning” in the witness statements (which probably should be “magnetic resonance image scanning”);

(3) conducted an MMSE (or “mini mental state examination”);

(4) been practitioners registered under the Mental Health Ordinance (Cap 136),

to be far-fetched (or, at the very least, asking for counsel of perfection).  This is particularly so for sub-para (2) to (4) above, when there is no evidential basis to suggest any of these were properly needed.

65.  As regards the suggestion that the doctor witnesses should have specifically asked the dec’d whether he was aware of:

(a) his earlier wills (such as the Mainland will or the undated will);

(b) his own assets;

(c) specific testamentary capacity,

I do not find these to be of importance in the light of the circumstances set out above (especially para 62 to 64 above) and 75 below.

66.  Consequently, I find the doctor witnesses’ assessment to be helpful to my assessment of the dec’d’s testamentary capacity and intention.

FINDINGS OF FACT

67.  As stated above, the two main issues are:

(1) whether the dec’d has the requisite mental capacity and testamentary intention at the time of the subject will (which the plaintiffs have to establish);

(2) whether the dec’d was under undue influence at that time (which the defendants have to establish, or at least show some evidential basis).

68.  I have rejected D2’s testimony as being incredible. Of the “circumstantial” matters relied upon by the defence to show para 67(2) above, I do not find them (whether individually or collectively) to be able to advance this part of their case (the matters set out in para 76 below have also been considered for this purpose).  Hence, I do not find any valid basis for finding that the dec’d has been unduly influenced.

69.  Quite a few authorities have been referred to in the parties’ written opening and closing submissions relating to para 67(1) above.  They include:

(a) on a testator’s mental condition: Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, para 171 to 173; Re LLC (Statutory Will) [2010] 3 HKLRD 16, para 144; Hoff v Atherton [2004] EWCA Civ 1554, para 62 to 64; Westendorp and Another v Warwick [2006] All ER (D) 248 (Apr), para 39; Banks v Goodfellow (1870) LR 5 QB 549, 565; Re Nightingale, Green v Nightingale (No 2) (1974) 119 Sol Jo 189;

(b) on a testator’s testamentary intention: Fuller v Strum [2002] 1 WLR 1097, para 59; the Nina Kung decision, para 206 and 218; Gill v Woodall and Others [2011] Ch 380, para 14 to 16;  Re Stott, Klouda v Lloyds Bank Ltd [1980] 1 All ER 259, 264; Buckenham v Dickinson [1997] CLY 4733.

See also Williams on Wills (2008) 9^th Ed, Vol 1, para 4.11, 4.17, 5.3; Theobald on Wills (2010) 17^th Ed, para 3-002.

70.  For the purpose of this judgment, I shall adopt the legal principles summed up in the parties’ written submissions.

71.  Where a will proposed to be propounded is contested, the one seeking to uphold the will should show the testator:

(1) was of sound disposing mind at the time of the contested will;

(2) knew and approved of the contents of the contested will.

The above involve two distinct concepts.

72.  A testator’s sound disposing mind means he must understand:

(a) he is giving his property to one or more objects of his regard;

(b) and recollect the extent of his property;

(c) the nature and extent of the claims upon him both of those whom he is including in the contest will and those whom is excluding from it.

Further, he must not be affected by delusions.

73.  As regards a testator’s knowledge and approval of the contents of the contested will:

(1) the applicant should show the contested will is the last will of a free and capable testator;

(2) proof of the testamentary capacity of the testator and the due execution of the contested will, without more, will give rise to a proper inference of knowledge and approval;

(3) where the circumstances are such as to arouse the court’s suspicion, the applicant should prove affirmatively that knowledge and approval so as to satisfy the court the contested will represents the testator’s wish.

In particular, affirmative evidence of knowledge and approval would be required where the one who prepared the contested will:

(a) received a benefit under it;

(b) as well as the one who received a benefit under it, are closely related or associated to each other.

The same applies to a person who actively procured the execution of the contested will under which he took a substantial benefit (examples of this include suggesting the terms of the contested will, or instructing a solicitor to procure the contested will).

74.  The above legal principles have been borne in mind when the findings of fact below are made.

75.  In relation to the dec’d’s testamentary capacity, by reason of para 7 and 62 to 64 above, I consider that there is good reason to find that he possessed the requisite capacity.  In particular, the fact that the subject will has expressly:

(1) mentioned, and benefited, all of the dec’d’s immediate family (including the defendants) (clause 5 thereof);

(2) apparently covered the dec’d’s earlier wills (clause 1 thereof);

(3) covered the dec’d’s real and personal property wherever located (clause 5(3) thereof),

supports such a finding.

76.  In relation to the dec’d’s knowledge and approval of the subject will’s contents, the defendants argue that this is a case where the court should find suspicion circumstances because:

(a) the subject will substantially benefited P2;

(b) the subject will substantially reduced Mdm Li’s entitlement to the dec’d’s estate;

(c) the subject will was procured by P2 within the meaning of para 73 (especially para 73(a) and (b)) above;

(d) the disposal of the dec’d’s Mainland properties by the Mainland will and/or the undated will reinforces the suspicion.

77.  Para 76(a) and (b) have no merits.  The contents of the subject will by themselves do not show any one beneficiary being particularly favoured (para 11 above is repeated).  Further, the plaintiffs draw attention to the overall entitlement being fair to all beneficiaries as well:

(1) there was an inter vivo transfer of half of the Sheung Wan property’s ownership to Mdm Li, D2 and P2: Mdm Li (20%) and each of D2 and P2 (15%);

(2) when the above is taken together with that in the subject will (para 11(2) above), the respective share of co-ownership in the Sheung Wan property would in effect become:

(a) Mdm Li holds 20%;

(b) each of D2 and P2 holds 20%;

(c) each of the 4 sisters holds 10%;

(3) the distribution of the residuary estate has already been set out in para 11(3) above and will not be repeated.

78.  From the dec’d’s viewpoint, the net effect of the above estate distribution would thus be:

(a) as regards the residuary estate, all the 6 children would share equally, but the males (that is, the sons) would get more than the females (that is, the daughters and Mdm Li);

(b) as regards the Sheung Wan property, the so-called “plaintiffs’ camp” would hold 60% while Mdm Li and D2 would together hold 40%.  This should make it difficult for the Sheung Wan property to be sold (which both parties say was what the dec’d wished for).

79.  Admittedly the dec’d’s business was “given” to P2.  However, the following has to be noted:

(1) P2 was undisputedly the son who has been assisting the dec’d and trusted by him;

(2) D2 has left the dec’d’s business for some time and clearly has only been interested in his own business;

(3) Mdm Li was already advanced in age (and her unfortunate health problem after the dec’d’s death in a way proves the dec’d’s foresight);

(4) last but not least, it is the defense own case (that is, the Hok Lo instructions) that the dec’d wished P2 to carry on the dec’d’s business.

Connected with the above is that, although there is no direct evidence about it, Mdm Li must have her own assets/savings.  This can be inferred from:

(a) her involvement in the dec’d’s business at some stage, and that she has earlier been running her own preserved egg business;

(b) her financial support repeatedly given to D2.

80.  With para 77 to 79 above in mind, I find that the alleged suspicious circumstances set out in para 76(c) and (d) above are nothing more than points contrived by a testator’s close relatives whose testamentary expectations have not been met by the terms of the will.  Gill v Woodall and Others [2011] Ch 380 described it vividly:

“Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the [testator], or that the [testator] was in some way mentally affected so as to cast doubt on the will” (para 16 thereof).

The Gill decision warned that, in such cases:

“If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs” (para 16 thereof).

In such cases, the Gill decision observed:

“As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the [testator], raises a very strong presumption that it represents the [testator’s] intentions at the relevant time, namely the moment [he] executes the will” (para 14 thereof).

81.  Further to para 80 above, as regards para 76(d) above, the matters set out in para 29 and 30 above should “neutralise” the suspicion contended for by the defence.

82.  In the light of the totality of the admissible evidence, I conclude that there was nothing suspicious about the subject will.  Due execution of the subject will has been proven.  Consequently, apart from testamentary capacity (para 75 above), I also find the dec’d to possess the requisite testamentary intention.

CONCLUSION

83.  Judgment is entered in the plaintiffs’ favour.

84.  The defendants’ counterclaim is dismissed.

OTHER MATTERS

85.  The defendants took out a summons dated 16 March 2012 (among other things) for the plaintiffs to be passed over as executors of the subject will.  The parties reached an agreement in principle at the beginning of the trial about this, and indicated that a formal order would be submitted for approval after they have sight of this judgment.

86.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS

87.  The parties ask that this aspect not be dealt with until after they have sight of this judgment.

88.  For this purpose, the following directions are given:

(1) the plaintiffs be at liberty to lodge with court and serve their written submissions on costs (including any submissions on the basis of taxation and certificate for counsel (if so advised)) within 14 days from the date of this judgment;

(2) the defendants be at liberty to lodge with court and serve their written submissions in answer within 14 days thereafter.

89.  Decision on costs will be made without a hearing for this purpose unless any party should argue otherwise (in the said written submissions (with supporting reasons)).  Whether there should be a hearing in such event will be determined “on paper”.

(Andrew Chung) Judge of the Court of First Instance High Court