CHAN KING HUNG as executor of the estate of CHAN FOOK LAI, deceased v. CHAN SIU KWAN PAULIE

CACV 159/2021, [2023] HKCA 1177

On Appeal From [2021] HKCFI 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2021

(ON APPEAL FROM HCAP NO 44 OF 2019)

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REASONS FOR JUDGMENT

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Hon G Lam JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an appeal against a summary judgment pronouncing for the force and validity of a will of the testator, the late Mr Chan Fook Lai (“Testator”), in solemn form of law.  At the conclusion of the hearing we dismissed the appeal.  These are our reasons.

2.  That summary judgment can in principle be given in a probate action to propound a will in solemn form is not in dispute: Re Lau Siu Wah, Deceased [2005] 1 HKC 364, §§13-19; Re Estate of Yau Tung Hoi (HCAP 9/2016, 10 March 2017), §16.  Such an application nevertheless needs to be approached with care, having regard to the special nature and features of a probate action, of the role of the court therein and of an order pronouncing in favour of a will, as explained in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, §§15-20.  At the end of the day, the person propounding a will “must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator”: Barry v Butlin (1833)  2 Moo PC 480, 482.

3.  Summary judgment is, of course, for clear cases, whether in probate or other cases.  Where the plaintiff has on his evidence established the constituent elements of his cause of action, it is for the defendant to show an issue in dispute that ought to be tried or that for some other reason there ought to be a trial.  In setting up her defence the defendant must condescend upon particulars; the mere assertion in an affidavit of a given situation is not sufficient.  Where the defendant has raised factual disputes, the court may nevertheless enter judgment summarily if the defendant’s allegations are not credible.  But where the allegations cannot be dismissed in this way, the court will not conduct a trial by affidavit.

4.  In the present case, the pleadings and affirmation of the defendant, which were prepared by herself acting in person, were prolix and replete with irrelevant matters.  The defendant was, however, represented by counsel at the hearing below, who confirmed that the defences advanced were that the Testator did not have the requisite testamentary capacity, and did not know or approve of the contents of the will.  The central issue raised, both below and on this appeal, is therefore whether based on the pleadings and evidence filed there are triable issues relating to these two matters.  There is in addition a question whether, by reason of the existence of the defendant’s counterclaim, there is some other reason for the action to go to trial.

The basic facts

5.  We shall first set out the basic facts that are common ground or not in serious dispute. 

6.  The Testator, a native of Chiuchow, was born in 1916.  He was married to Madam Yau Whai Ying (“Madam Yau”).  They had five sons.  The plaintiff herein is their fourth son.

7.  The defendant was, according to the plaintiff, Madam Yau’s younger brother’s daughter, but had, since the 1950s when she was about eight years old, been raised and taken care of by the Testator and Madam Yau as their daughter.  The defendant said she was their “legal daughter” (合法女兒), with an entitlement to their estates upon intestacy.  The Testator’s will referred to her as his “daughter”.  She had in earlier years emigrated to Canada upon her marriage, but moved back to Hong Kong in around 2003.

8.  The Testator settled in Hong Kong in the 1950s. He was a renowned photographer.  He also took part in certain business enterprises including, in particular, two companies called Hip Lik Paper Products Factory, Limited (“Hip Lik”)  and Wah Hop Company, Limited (“Wah Hop”)  in which he held some shares.  From about 2007 up to his death in 2018 he lived in a flat in Lan Fong Road, Causeway Bay.  It was a property that used to be owned by a company that the Testator controlled, but had since 1998 been owned by a friend’s company; it was acquired by the plaintiff’s wife in August 2008. There the Testator was taken care of by his first daughter-in-law who also resided there, with the assistance of domestic helpers.

9.  In May 2004, the Testator’s fifth and youngest son, who had fallen into a coma a few years before, passed away intestate, apparently without a spouse or issue.  In June 2004, Madam Yau also passed away intestate.  Letters of administration of their estates were granted to the Testator in April 2007.

10.  Mr Darin Leung (“Mr Leung”), the principal of the solicitors firm Messrs Darin Leung & Partners, had handled various legal matters for the Testator before and was familiar with him.  In January 2008, when the Testator was 91 years old, he went with the plaintiff to Mr Leung’s office and gave instructions for the preparation of a will.  On 30 January 2008, Mr Leung, having prepared a will, went to the Testator’s home.  There the Testator signed the will (“Will”)  in the presence of Mr Leung and Prof Wong Shek Nam Danny (“Prof Wong”), an old friend of the Testator who was also a shareholder in Hip Lik and Wah Hop, and they also signed on the Will as attesting witnesses.

11.  Under the Will, the Testator:

(1)  appointed the plaintiff to be the executor and trustee of the Will;

(2)  gave and bequeathed his 7,000 shares in Hip Lik to his first four sons (500 shares each), their wives (1,000 shares each), and the eldest son of his eldest son (1,000 shares);

(3)  gave and bequeathed his 179 shares in Wah Hop to his first four sons (22 shares for the first, second and fourth son, and 21 shares for the third), their wives (15 shares each), the eldest son of his eldest son (17 shares), and the defendant (15 shares); and

(4)  left his residuary estate on trust for his first four sons in equal shares.

12.  The testimonium and attestation clause in the Will read:

“ Signed by the abovenamed Testator as his last will (the will having been first read over and truly interpreted to him in the Cantonese dialect of Chinese language by the undersigned Leung Wai Yuen Darin who understands both the English and Chinese languages and speaks the Cantonese dialect which interpretation was done in our presence when the said Testator appeared thoroughly to understand this Will and to approve the contents thereof)  in the presence of us both present at the same time who at his request in his presence in the presence of each other have hereunto subscribed our names as witnesses”

13.  In around October 2009, the shareholders of Hip Lik and Wah Hop agreed that the companies’ assets be distributed to the shareholders (see §25(6)  below), and cheques were given to the Testator for his stakes in the two companies.  The legacies of the two companies’ shares in the Will had apparently become of little value.

14.  The Testator passed away on 11 September 2018 at the age of 102.

The proceedings below

15.  Following a caveat registered by the defendant and an appearance entered by her when warned, the plaintiff commenced the probate action below on 4 December 2019 to propound the Will in solemn form. On 16 January 2020, the defendant filed a Defence and Counterclaim (抗辯及反申索書).  On 13 March 2020, the plaintiff filed his Reply and Defence to Counterclaim.  On 30 June 2020, without the court’s leave, the defendant filed another document called “Re Defence and Counterclaim” (再抗辯及反申索書).

16.  In her pleadings, the defendant alleged that the Testator had dementia (腦退化), had had Parkinson’s disease and taken medicine for it for several decades, was completely deaf in his left ear and had only 5% hearing power in his right ear, and could hardly see anything with his eyes because of macular degeneration.

17.  On 31 July 2020, the plaintiff made an application by summons for summary judgment under Order 14 of the Rules of the High Court (Cap 4A).  The summons also sought an order for striking out the defendant’s two pleadings, but this part of the application was adjourned at the hearing before the judge indefinitely with liberty to restore.

18.  The plaintiff’s application was supported by his own first affirmation and an affirmation of Mr Leung, both filed on 14 August 2020.  The defendant filed an affirmation in opposition prepared by herself on 5 October 2020.  In reply, the plaintiff filed his 2^nd affirmation and Mr Leung’s 2^nd affirmation on 1 December 2020.

19.  Meanwhile, on 21 October 2020, the defendant filed a summons seeking discovery of certain documents from the plaintiff.  On 7 December 2020, the plaintiff filed his 3^rd affirmation setting out his responses to the defendant’s requests for documents.  At the directions hearing held on the following day, the defendant’s summons was adjourned by the court sine die with liberty to restore.

20.  The defendant subsequently instructed solicitors who came on record on 15 December 2020, but did not take any steps to restore her summons for discovery, or to seek leave to amend her pleadings or adduce further evidence on the plaintiff’s summons.  Counsel was instructed to appear for the defendant at the hearing, but ultimately it was on the pleadings and evidence filed by the defendant in person (and those filed by the plaintiff)  that the application for summary judgment fell to be determined.

The evidence

21.  In the plaintiff’s 1^st affirmation, he stated that the Will was signed by the Testator in the presence of two attesting witnesses, and that the Will was unambiguous as to how the Testator’s estate was to be distributed, including an express provision for the defendant, though Wah Hop was dissolved before the Testator’s death.  The plaintiff stated that the Testator was of sound mind and relatively good health at the time of the execution of the Will and was of testamentary capacity, and exhibited four documents in support: (1) a medical report dated 6 July 2020 issued by Dr Michael L K Lee, a neurologist that the Testator had consulted from 2006 up to his death; (2) a photograph of the Testator walking on stage by himself without any aid when he received the Bronze Bauhinia Star Award in October 2007; (3) a news article published on 2 April 2009 about a photography exhibition of the works of the Testator (and two other photographers)  showing the Testator conversing with guests; and (4) an interview of the Testator published in the Bauhinia Magazine in or around 2012.

22.  Mr Leung’s 1^st affirmation stated that he had known the Testator for years prior to his death and handled numerous legal matters for him, his family members, and his companies.  He said that on 23 January 2008 (a date corrected in his 2^nd affirmation to a few days prior to 18 January 2008), the Testator gave him clear instructions on how he wanted his estate to be distributed, making reference to his own notes and papers when he gave instructions.  Mr Leung said he and the Testator conversed with ease and had no difficulty understanding each other, and stated that the Testator was “of sound mind and certainly possessed full testamentary capacity”.

23.  Dr Lee’s medical report, exhibited by the plaintiff, stated:

“ I started to see the above named patient in Oct. 2006 when he presented with drug-induced Parkinsonism and depressive neurosis. He had a change in his medication & responded quite well. In 2007, he had an episode of positional vertigo which recovered spontaneously. Also by 2007, he exhibited Rapid-Eye-movement sleep Behavior Disorder, often a prelude to Idiopathic Parkinson’s Disease. The sleep disorder was controlled with Clonazepam. In January 2008, he developed signs of Parkinson’s disease with tremor of hands & jaw & some mild upper limb rigidity. His cognitive function (mental function)  was not noted to be significantly affected. He was started on treatment for Parkinson’s disease in addition to treatment for depression & hypertension. In 2011, around June, he developed confusion, thought to be due to his medication. This responded to change of medication. After this, he continued to have treatment here that had not been changed significantly. He deteriorated progressively because of old age until his death in 2018.”

24.  In the defendant’s affirmation, she stated, inter alia:

“ 3. 取銷父親「陳復禮」於 30 January 2008 所立的 Last Will ( 判其無效）。理由是該「遺囑」內容疑點重重，是一項經幾年的有動機預謀及刻意策劃，且幕後應有專人設計一個圈套，利用父親患老人病及神智不太清醒下而製造出一張如此「精心設計的遗嘱」而非如 Plaintiff 說的「不幸地」「華合有限公司」结業，所以父親給你的15 股權亦沒有了。

反對理由

3.1 基於父親「陳復禮」改遺囑時已年屆92 歲，且已患有嚴重的柏金遜症多年，眼患黃斑病變（已打了三，四支「黃斑病變眼針」其實在簽 Last Will 時，已喪失眼力，左耳已全失聰，右耳亦只有幾％的聽覺（ 我的聲很響，要用潮州話很大聲的靠向其右耳，還要同一句說話，重複很多次，他才能入耳。）手無力，且震得很利害，已不能寫字及自己用匙吃飯，要工人姐姐餵。

3.2 父當年，當時究竟他本人知不知道，清楚知道，自己「實質」擁有幾多物業，資產及原本對人的「承諾」要「負责任」是否受人唆擺或威脅下而簽字。簽名時，律師有沒有明確的、清楚的解讀清楚每一細則，分配人物量，每股市值等等。

父當日是否自願性的去改遺囑或是被迫，被威脅或有其他原因呢？

基於以上種種因由，父於簽/改 Last Will 時是應該及一定要有兩位「香港政府註冊及認可的精神科鑑證專科醫生」在場見證，認同立遺囑者當時的精神狀況及理解能力是絕對無問題的「醫生證明文件」兩封，此「遗囑」才算是一份有效的遺囑。（所以本人在此再次的要求Plaintiff 提供「兩位精神科醫生」的「見證書」）。”[1]

25.  In the plaintiff’s 2^nd affirmation filed in reply, he made, inter alia, the following main points:

(1)  Since the death of his wife and youngest son in 2004, the Testator had occasionally mentioned to the family that he wished to make a will.  In late 2007, he asked the plaintiff to set up a meeting with Mr Leung to discuss making a will.  At that short preliminary meeting in Mr Leung’s office, the Testator brought along some of his own papers and explained to Mr Leung how he would like his estate to be distributed, describing specifically the way he would apportion his shares in Hip Lik and the residuary estate.

(2)  After the meeting, the Testator instructed the plaintiff to send Mr Leung the company search documents of Hip Lik and Wah Hop.  After receiving the documents, Mr Leung asked the plaintiff regarding the distribution of the Wah Hop shares.  When the plaintiff in turn asked the Testator, he told the plaintiff to tell Mr Leung how he would like those shares to be specifically distributed, including the request to the defendant.

(3)  At the signing meeting on 30 January 2008, Mr Leung explained the contents of the Will to the Testator, who indicated his approval and understanding.  The Testator was specifically asked by Mr Leung whether the residuary estate should be distributed amongst his four living sons only and he confirmed it.

(4)  The plaintiff exhibited a note written by the Testator dated 23 September 2004 which recorded that the Testator had decided with immediate effect to give the 14 “shares” in Hip Lik (six “shares” in his name, six “shares” in his late wife’s name, and two “shares” in his youngest son’s name)  to his four living sons and their wives and the eldest son of his eldest son.  The note bore the signature of Prof Wong as a witness with the date of 4 October 2006. 

(5)  The plaintiff exhibited two photographs taken in August 2008 at the wedding of one of the Testator’s grandsons, and said that the Testator played Mahjong with friends and relatives at that banquet.

(6)  The plaintiff explained that in October 2009, the shareholders of Hip Lik and Wah Hop decided to bring the companies to an end and to have the assets distributed to the shareholders.  As a consequence, the Testator was paid $5,340,000 by Hip Lik and $8,100,000 by Wah Hop. According to the plaintiff, these funds were then distributed to the rest of the family according to the Testator’s wishes and with the family’s consent. In particular, on about 28 October 2009, the Testator signed a cheque for $520,000 to the defendant and another cheque for $100,000 to the defendant’s daughter.  The plaintiff said that this was all agreed to by the defendant at the time of the distribution.

(7)  The plaintiff referred to a resolution of the shareholders of Hip Lik for its deregistration (which had been exhibited by the defendant and according to her was signed on 30 October 2009), and made the point that even by 2009, the Testator was managing his own affairs, signing documents, and distributing assets amongst his children. 

(8)  The plaintiff stated that at the time when the Will was made, the bulk of the Testator’s wealth lay in his shares in Hip Lik and Wah Hop, and that by now the estate “cannot be described as large at all”.

26.  Mr Leung also made a 2^nd affirmation which was filed in reply in which he stated the following:

(1)  Mr Leung was familiar with the Testator.  He had known the Testator and the Chan family for a long period of time, as Mr Leung’s younger sister had been working for the Chan family since over 30 years ago and he himself had handled numerous legal matters for the Testator and his family.

(2)  A few days prior to 18 January 2008, the Testator and the plaintiff attended a meeting for around 30 minutes at his office.  The testator had brought with him some notes of his own and said he would like to make a will.  Mr Leung wrote down on a piece of paper how the Testator said he planned to distribute his shares in Hip Lik and his residuary estate.  Those notes, which Mr Leung exhibited, set out the proportions for distribution of the shares in Hip Lik as found in the Will, and also contained the words “1/4 residuary”. 

(3)  At that meeting Mr Leung asked the plaintiff to send him a list of the names of the beneficiaries.  After the meeting, the plaintiff sent Mr Leung the list of names together with the company search documents of Hip Lik and Wah Hop.

(4)  Shortly after the meeting, Mr Leung produced a preliminary draft of the will which did not specifically set out the distribution of the shares in Wah Hop.  He called the plaintiff and asked whether the Testator wanted to treat the shares in Wah Hop as part of his residuary estate or to distribute them specifically.  The plaintiff said he had to ask the Testator.  The plaintiff later told Mr Leung that the Testator would like to distribute his 179 shares in Wah Hop specifically, but in a manner slightly different from his 7,000 shares in Hip Lik, and in particular that he would like to specifically provide for the defendant by bequeathing to her 15 shares in Wah Hop.  Using a copy of the draft will, Mr Leung made notes of the instructions, which he exhibited.

(5)  On 30 January 2008, Mr Leung attended the home of the Testator together with Prof Wong.  Mr Leung said: “I explained to the Deceased the contents of the Will line by line, and he indicated that he understood by nodding and stating his approval.”  Mr Leung said he specifically asked the Testator again whether his residuary estate should be distributed among his four surviving sons only, and not to his daughters-in-law, the defendant or any of his grandsons, and the Testator confirmed.  Mr Leung said: “The Deceased then signed the Will, which Mr Danny Wong and I witnessed.  Mr Danny Wong and I then signed on the Will as well.  I confirm once again the Deceased had no problem understanding what I said before we appended our signatures to the Will, and was entirely clear and aware as to how he wanted his estate to be distributed.”

The judge’s judgment

27.  The plaintiff’s application for summary judgment was heard by Recorder Eugene Fung SC (“judge”), who handed down his judgment on 16 March 2021 (“Judgment”).[2] The judge noted that a party propounding a will has the legal burden of proving on the balance of probabilities that (1) there was due execution of the will; (2) the testator was of testamentary capacity; and (3) the testator knew and approved of the contents of the will.  The judge was satisfied that the plaintiff had proved due execution of the Will.  He took note of the defendant’s counsel’s confirmation that the defendant contested two matters: testamentary capacity and knowledge and approval.[3] 

28.  On testamentary capacity, the judge referred to the three questions established by the authorities for determining whether a person had testamentary capacity to make a will: (1) whether he was capable of understanding the nature of the act of making the will and its effect; (2) whether he was capable of understanding the extent of the property of which he was disposing; and (3) whether he was able to comprehend and appreciate the claims to which he ought to give effect.  The judge also noted that testamentary capacity is a practical question to be assessed holistically by reference to the totality of the evidence (and not just the medical evidence)  and with common sense.[4]

29.  The judge then examined each of those three questions.  On whether the testator was capable of understanding the nature of the act of making the Will and its effects, the judge referred to the affirmation evidence of Mr Leung including the Testator’s handwritten note, the affirmation evidence of the plaintiff, and the medical report of Dr Lee.  The judge then turned to the allegations of the defendant that the Testator had taken a lot of drugs related to his Parkinson’s disease which caused him to have dementia and was unable to understand the complicated contents of the Will.  The judge considered that the defendant’s allegations about the mental condition of the Testator were bare allegations without particulars, and noted that the defendant’s counsel accepted that no factual basis had been set out by the defendant for the assertion that the Testator had dementia at the time.  The judge found, for several reasons which he set out, that the defendant’s assertion of dementia was unbelievable, and concluded overall that the plaintiff had established that the Testator was capable of understanding the nature of the act of making the Will and its effects.[5]

30.  As to whether the Testator was capable of understanding the extent of the property of which he was disposing, the judge referred to the affirmation evidence of the plaintiff and Mr Leung, which, the judge said, confirmed that it was the Testator who had directly told Mr Leung how he wished his shares in Hip Lik and his residuary estate to be distributed upon his death, and that he wished to bequeath 15 shares in Wah Hop to the defendant.  The plaintiff’s evidence was that the Testator’s shares in Hip Lik and Wah Hop represented the bulk of his estate at the time, and the defendant had not suggested there was any other asset not covered by the Will.  The judge concluded that the plaintiff had discharged the burden in question.[6]

31.  As to whether the Testator was able to comprehend and appreciate the claims to which he ought to give effect, in addition to the affirmation evidence of the plaintiff and Mr Leung, the judge noted that the plaintiff also relied on the Testator’s handwritten note of 2004 and the fact that subsequent to the Will, the Testator received funds from the two companies which were distributed to the rest of the family including the defendant and her daughter.  The judge considered that on the evidence, the Testator was able to recall in 2008 the family members whom he considered to be fitting recipients from his estate and to understand their respective relationships to himself.  There was no one the defendant suggested had been left out under the Will.  The judge concluded that the plaintiff had discharged his burden of proof.[7]

32.  On the question of the Testator’s knowledge and approval of the contents of the Will, the judge made it clear he did not only rely on the presumption that flowed from the fact that the Will was prepared by a solicitor and, on the face of it, was properly executed by the Testator after having had the contents read over to him.  Instead, he would examine the available evidence to see if the plaintiff had proved knowledge and approval. Based on the evidence, the judge concluded that the plaintiff had discharged his burden.[8]

33.  Finally, with regard to the defendant’s submission that the “golden rule” had not been followed in that the Testator’s execution of the Will was not witnessed or approved by a medical practitioner, the judge found that in the light of the evidence adduced by the plaintiff and the absence of cogent evidence from the defendant, the mere non-compliance with the golden rule was not sufficient to warrant giving the defendant leave to defend.[9]

The defendant’s appeal

34.  The arguments raised on behalf of the defendant in this appeal by Mr Jeff Yau (who did not appear below)  go towards three main contentions which we shall discuss below:

(1)  There are triable issues in relation to each of the three aspects of testamentary capacity.

(2)  There are triable issues in relation to the Testator’s knowledge and approval of the contents of the Will.

(3)  The continued existence of the counterclaim constitutes “some other reason” why there ought to be a trial of the action.

Testamentary capacity

35.  A number of points were raised by Mr Yau in relation to the Testator’s testamentary capacity.  First, he submitted that “lack of testamentary capacity does not solely arise from dementia” and that the judge erred in concluding that there was no triable issue on the Testator’s “mental defect or delusion” after rejecting the defendant’s allegation of dementia.  We do not think there is merit in this argument.  In finding a will to have effect, the court must, of course, be satisfied that the testator had testamentary capacity.  But what this involves depends on the circumstances of the case.  The defendant here had specifically alleged that the Testator had dementia.  There was nothing wrong for the judge to focus on the positive case raised by the defendant.  The judge did not simply conclude from his rejection of the allegation of dementia that the Testator had testamentary capacity.  He also took into account the affirmation evidence of the plaintiff and Mr Leung and the medical report of Dr Lee in arriving at his conclusion.[10]  The judge was entitled to proceed on the basis that once the specific allegation of dementia was rejected, in the light of the positive evidence adduced by the plaintiff in support of testamentary capacity, there was no issue in that respect that warranted a trial.

36.  Mr Yau submitted that the judge erred in characterising the defendant’s allegations as “bare assertions”.  We do not agree.  A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the attesting witnesses: RHC Order 62 rule 6(1)(c); Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, §16.  But if he pleads a positive case of unsoundness of mind, that case must be properly supported by facts and particulars: RHC Order 18 rules 7 & 12(1)(b). Here, the defendant merely asserted that the Testator had dementia, which was un-particularised and unsupported by any specific facts, apart from the allegation that he had Parkinson’s disease, which we deal with below.  We do not accept that in paragraph 3 (quoted above)  and other paragraphs of the defendant’s affirmation referred to by Mr Yau, she can properly be said to have condescended to particulars.  In fact, as recorded in the Judgment,[11] the defendant’s then counsel admitted that the allegation that the Testator had dementia was an assertion the factual basis for which had not been set out. The defendant also advanced a case that the Testator visited Mr Leung’s office with her on 23 January 2008 where the Testator told the defendant that he would add her to his will, which was wholly inconsistent with her assertion that the Testator lacked mental capacity at the time.

37.  Next, Mr Yau submitted that Dr Lee’s medical report itself raised triable issues on the Testator’s mental capacity. Reliance was placed on the references in the report to Parkinson’s disease, depressive neurosis and the drugs taken by the Testator.  In assessing this submission, it is necessary to bear in mind that testamentary capacity is a practical question to be approached by reference to the whole of the evidence (and not just the medical evidence)  and with judicial common sense: Re Estate of Lau Heung [2019] HKCA 769, §19. 

38.  In the present case, apart from the evidence of the plaintiff, there was also the evidence of Mr Leung, a solicitor who had handled legal matters for the Testator for many years.  He did not only see the Testator at the signing meeting, but had also verbally taken instructions from him at a prior meeting.  The contents of the Will, as far as the shares in Hip Lik were concerned, followed the proportions of distribution stated in the Testator’s own handwritten note made in 2004 and witnessed by Prof Wong in 2006 (on the basis that each “share” referred to in the handwritten note represented 500 shares out of the 50,000 issued shares of Hip Lik).

39.  The Testator became administrators of his wife’s and youngest son’s estates by grant of letters of administration in April 2007.  There was evidence that the Testator received distribution of assets from Hip Lik and Wah Hop in October 2009, and signed two cheques in the sums of $520,000 and $100,000 in favour of the defendant and her daughter respectively, 21 months after the execution of the Will.  As the judge pointed out, the defendant did not explain why she accepted the payment if she considered the Testator’s mental condition was impaired at the time.[12]  The defendant had herself produced a copy of a members’ written resolution for the deregistration of Hip Lik signed by, among others, the Testator in late 2009, as a sample of his proper signature, without querying the then soundness of his mind.  There was also evidence that at a ceremony in 2007 the Testator went up to the stage by himself to be awarded the Bronze Bauhinia Star by the Chief Executive, that he attended a grandson’s wedding banquet in August 2008 where he played mah-jong with other guests, and that he was interviewed by journalists in late 2012 and again in May 2013 without any sign that he was significantly mentally impaired.

40.  It should also be noted that Dr Lee had already been the Testator’s doctor since October 2006.  He recorded that in January 2008, the Testator developed signs of Parkinson’s disease with tremor of hands and jaw and mild upper limb rigidity, but his observation was that “[h]is cognitive function (mental function)  was not noted to be significantly affected”.  It was only in 2011 that, according to Dr Lee’s report, the Testator developed confusion, possibly due to his medication.

41.  In these circumstances, it is in our view wholly speculative for the defendant to suggest that the Testator’s Parkinson’s disease might have caused dementia, or that his depressive neurosis might have given rise to such a disorder of mood as to deprive him of testamentary capacity, or that the medication he received might have had an impact on the Testator’s cognition and mood to the extent that he lacked testamentary capacity.  Dr Lee’s medical report was disclosed by the plaintiff in his 1^st affirmation.  The defendant asserted in her pleading that the Testator’s doctor had told her that long-term medication for Parkinson’s disease would cause dementia, but she failed to adduce any medical evidence to support her assertion or to respond to the medical report disclosed.  The defendant did not suggest in her affirmation filed in opposition that Dr Lee had wrongly failed to record that the Testator was at the relevant time suffering from dementia or that his cognitive function was impaired.  Nor did the defendant adduce any evidence from any relative or friend of the Testator that his mental condition was unsound at the time.

42.  It was also submitted on behalf of the defendant that Mr Leung, as the solicitor handling the execution of the Will, failed to follow the “golden rule”, namely, that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator: see Re Estate of Au Kong Tim [2018] 2 HKLRD 864, §§2.6 & 46.  The judge did not overlook the fact that the “golden rule” was not followed.  He held, rightly in our view, that this did not mean the plaintiff could therefore not succeed in propounding the Will.  It depends on the facts and evidence of the case.[13] 

43.  Mr Yau submitted that no weight should be placed on Mr Leung’s evidence because there was no medical practitioner present at the execution of the Will.  He said that persons with failing mental faculties may seek to conceal their condition from other persons, so that a solicitor may fail to detect defect in mental capacity which could be discovered by an experienced medical practitioner, and that if a solicitor’s view on the testator’s mental capacity is not based on a proper assessment and accurate information, it may be worthless: Re Estate of Au Kong Tim, §§2.7 & 59.  In that case, Cheung JA set out the enquiries that should be made by a solicitor who is tasked with preparing and witnessing a will, and referred to the further enquiries which should be done in the case of an elderly and infirm testator.[14] This is important guidance to which practitioners should pay close attention.  But it does not follow that the evidence of a solicitor who prepared and witnessed a will without following such guidance is necessarily to be wholly disregarded.  It is a matter of degree and weight, to be looked at in the context of the facts of each case.  In Re Estate of Au Kong Tim, there was medical evidence that a year before the will in question was executed, the testator had cerebral atrophy and was suffering from dementia which would affect his ability in judgment.  There was also evidence from factual witnesses on his impaired mental condition at the time.  The solicitors who prepared and witnessed the will did not receive instructions on the contents of the will directly from the testator, and apparently met him for the first time when the will was executed.  In the present case, Mr Leung was familiar with the Testator, having handled legal matters for him for years before, and took instructions from him at a prior meeting.  There was no credible evidence of dementia as alleged by the defendant.  The medical evidence suggested that the Testator’s cognitive function was intact.  There was no particularised evidence from any relative or friend that cast doubt on the Testator’s mental capacity.

44.  In respect of the Testator’s understanding of the extent of his estate, Mr Yau placed heavy reliance on the fact that instructions on the distribution of the Wah Hop shares were not given by the Testator directly to Mr Leung at the meeting in mid-January 2008, but only subsequently through the plaintiff.  We accept the submission that the judge’s understanding that “it was the Deceased who had directly told Mr Leung how he wished (1) his shares in Hip Lik and his residuary estate to be distributed upon his death and (2) that he would want 15 shares in Wah Hop to be bequeathed to the defendant”[15] is not entirely accurate, for on the plaintiff’s evidence, the instructions relating to the Wah Hop shares were given by the Testator to the plaintiff and by the plaintiff to Mr Leung (although the judge might have been misled by Mr Leung’s affirmation which was somewhat confusing in this regard).  Given the evidence supporting the soundness of the Testator’s mind, however, we do not think that the fact that the instructions on the Wah Hop shares were given through the plaintiff gave rise to a triable issue as to whether the Testator understood the extent of the property he was disposing of by the Will.

45.  Although there is no specific evidence that Mr Leung asked the Testator about the size of his estate or the nature of the assets therein, Mr Yau, correctly in our view, did not go so far as to contend that whenever such specific evidence is absent, there is no proof of the testator’s ability to understand the extent of the property of which he was disposing.  As Mr Yau accepted, on the evidence the Testator did not have any substantial asset other than the shares in Hip Lik and Wah Hop, and Mr Yau did not suggest that there was any significant asset not specifically dealt with in the Will.

46.  As to the fact that the Wah Hop shares were to be distributed in different proportions compared to the Hip Lik shares, we do not think this gave rise to any doubt about the Testator’s mental capacity. The Testator held an odd number of shares (179 out of 1,000)  in Wah Hop, which simply could not be divided into 14 equal parts as in the case of the Hip Lik shares.  Hip Lik itself held 250 shares in Wah Hop.  The manner of distribution of the estate generally and of the Wah Hop shares in particular under the Will cannot on any view be said to be irrational.  In fact, in her Defence and Counterclaim, the defendant asked to be paid the monetary equivalent of the 15 Wah Hop shares bequeathed to her under the Will.

47.  There is no suggestion from the defendant that in making the Will the Testator had left out anyone in the family or that he was mistaken in his understanding of any family member’s relationship to him.

48.  Mr Yau had in his able submissions said everything that could properly be said on behalf of the defendant, but ultimately he could not make bricks without straw.  For the reasons given, we consider that the defendant had failed to raise any triable issue in relation to the testamentary capacity of the Testator.

Knowledge and approval

49.  The defendant’s arguments in relation to the Testator’s knowledge and approval of the Will were based on essentially the same points raised on testamentary capacity, and therefore failed for the same reasons explained above. 

50.  In addition, Mr Yau submitted that because the instructions on the specific distribution of the Wah Hop shares were given by the plaintiff to Mr Leung, the second rule in Barry v Butlin (1838)  2 Moo PC 480 applied.  In that case, Parke B said:

“ The second [rule] is, 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 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.”

In Cheung Wai Lan v Kwok Chung Chee (CACV 128/2014, 15 April 2015), at §§44-51, this court held that the rule applied in circumstances where the will was prepared based on instructions relayed by a person whose son was the major beneficiary under the will.  Mr Yau submitted that had the judge correctly appreciated the evidence, he would have found that the second rule applied and concluded that the suspicious circumstances surrounding the execution of the Will were not removed.

51.  Quite apart from the fact that the defendant had failed, contrary to the requirement in Order 76 rule 9(3), to “specify the nature of the case” in her pleading in relation to her contention that the Testator did not know and approve of the contents of the will, we do not think that this argument assists the defendant.

52.  As is well established, the burden borne by the proponent of a will when the second rule in Barry v Butlin applies is to adduce affirmative evidence of knowledge and approval; there is no further burden to dispel suspicious circumstances: Re Estate of Lau Heung (deceased), §79; Chiu Man Fu v Chiu Chung Kwan Ying (CACV 40/2012, 18 June 2013), §73.  In the present case the judge expressly decided not to act only on the presumption that knowledge and approval was established upon proof of due execution and testamentary capacity.  He actually examined the evidence and concluded on that basis that the plaintiff had discharged his burden to show the Testator’s knowledge and approval.[16]

53.  Further, as was made clear in Barry v Butlin itself, the fact that a beneficiary had a part to play in the preparation of the will is “at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, … varying according to circumstances …”.[17] In the present case, without the revision of the draft will pursuant to the instructions relayed by the plaintiff, the 179 Wah Hop shares would have formed part of the residuary estate under a will based on the instructions given directly by the Testator, and the plaintiff as one of the four residuary legatees would have received a quarter of the shares (i.e. 44.75 shares).  Under the Will as revised and executed, the plaintiff together with his wife were given 37 shares in Wah Hop.  In other words, as Mr Yau said, the plaintiff’s position was worse off based on the instructions he said he relayed to Mr Leung.  In contrast, those instructions added a bequest of 15 shares in Wah Hop to the defendant.  In these circumstances this so-called suspicious circumstance could have but little weight.

54.  For these reasons, we are satisfied that the plaintiff had discharged his burden of proof and that the defendant had failed to raise any triable issue in respect of the Testator’s knowledge and approval of the contents of the Will.

Existence of the counterclaim

55.  Finally, the defendant argued that the existence of her counterclaim was a reason why the action should go to trial, citing Choy Po Chun v Au Wing Lun, §20.  The facts of that case were very different.  The plaintiffs there sought to propound a will made in 2002 and applied for summary judgment, but the defendant sought by counterclaim to propound a subsequent will made by the testator in 2008.  Quite plainly summary judgment could not be given in favour of the plaintiffs without effectively summarily determining that the subsequent will was not valid, which the court was not prepared to do on the evidence available there.

56.  In the present case, much of the defendant’s counterclaim, to the extent it is intelligible, does not concern the validity of the Will.  Nor does the defendant seek to propound any competing will.  As helpfully summarised by Ms Lydia Leung in her submissions for the plaintiff, the defendant counterclaims for: distribution of the estate of Madam Yau; distribution of the estate of the Testator’s youngest son; disclosure of the Testator’s alleged wills; removal of the plaintiff as executor for unfitness; relief concerning the distribution of funds from Hip Lik and Wah Hop; the setting aside of the transfer of the property at Lan Fong Road; and compensation for a labour dispute.  The further relief sought in her counterclaim that the plaintiff had no right to obtain probate of the Will (原告人無權申請領取父親「陳復禮」的遺囑), in so far as it is based on the defendant’s challenge on the validity of the Will, is simply the corollary of her defence, which fell away with summary judgment being granted in the plaintiff’s favour.  Accordingly, the existence of the counterclaim is not a valid reason why the plaintiff’s claim should have to go to trial in the absence of any proper triable issues.

Conclusion

57.  For all these reasons, we dismissed the appeal with costs and ordered that the plaintiff’s own costs, assessed on the trustee basis and not recovered from the defendant, be paid out of the Testator’s estate.