ROSEANNA IP MAN SUM AND OTHERS v. HENRY IP MAN SHAN AND ANOTHER

Probate - proof of validity of will - whether testator of sound mind - whether inclusion of clause use in will that sons dishonest evidence of irrational delusion which had operative effect on will - whether will procured by daughters undue influence - Held : 1. The will was the last will of the deceased and as to form was duly executed; 2. The deceased whey he executed the will was of sound mind, memory and understanding; 3. The will had not been procured by either the direct or indirect undue influence of the daughters; 4. Decree pronouncing for the force and validity of the will in solemn form.

Action No. 3 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT PROBATE

JURISDICTION

______________

IN THE ESTATE of IP CHING PING deceased

__________

JUDGMENT

__________

1. The plaintiffs are the executrices named in a will of Mr. Ip Ching Ping deceased ("the deceased") dated 6th January 1982. The deceased died on 12th April 1983. In this action the plaintiffs who claim that this will is the last will and testament of the deceased apply to the Court for a decree pronouncing for the force and validity of the will in solemn form of law.

2. The deceased was married to Madam Wong Miu Shim, who predeceased him on 2nd May 1981. There were 7 children of the marriage, namely 2 sons and 5 daughters. The sons are the 1st and 2nd defendants. The daughters are the 3 plaintiffs, Maimie Yip Nan Mei and Loretta Ip Man Lui. In order of birth, the children range from Henry, Loretta, Sammy, Roseanna, Maimie, Marion to Henrietta. At present Loretta and Maimie live overseas while the remaining 5 children reside in Hong Kong.

3. There is no dispute that the will dated 6th January 1982 was the last will and testament ('the will') of the deceased. It is also undisputed that the will was duly executed in full compliance with the formal requirements prescribed by law for a valid will. On the evidence I am satisfied and so find, that the will is the last will and testament of the deceased and as to form was duly executed.

4. The 1st defendant filed a defence and counterclaim in which he put the plaintiffs to strict proof. The counterclaim, inter alia, pleaded that the deceased had earlier made a will, alleged to be lost, pursuant to an oral agreement with his wife to make mutual wills, under which the sons were left all of deceased's shares in the family Company, Ching Hing Construction Co. Ltd. The 1st defendant claimed that the executrices hold the estate of the deceased subject to the prior trusts of the lost will. At the beginning of the hearing it was indicated that the 1st defendant had reached settlement with the plaintiffs and he took no further part in the proceedings. Shortly before the writ in the present action, issued on 22nd June 1984, the 1st defendant had on 19th June 1984, commenced his own action against his sisters and brother making substantially the same claim as he later pleaded as his counterclaim in the sisters present action. This claim by the 1st defendant, brought as Probate Action No. 2 of 1984, was also included in the settlement.

5. The defence and counterclaim of the 2nd defendant in the present action, was based on two main grounds. First, that the deceased when he made the will was of unsound mind. Secondly, that the will was procured by the undue influence of the plaintiffs. Before going on to deal with these issues, it is necessary to consider evidence relating to various family matters relevant to the present dispute.

6. The facts surrounding some of these matters were exhaustively adduced in evidence and while I have fully considered the whole of the evidence, I do not propose to go into all of that evidence in comparable detail. During the hearing I had occasion more than once, to remind Counsel that the present proceedings were merely a probate action, solely concerned with the Validity of the will. A large amount of the evidence was more concerned with whether the deceased made just provision for all members of his family. Unlike the position in many other common law jurisdictions, a testator in Hong Kong enjoys absolute and unlimited testamentary power and is under no duty to make just provision for his family. However, Counsel submitted that whether just provision had been made, was an indication of the reasonableness of the will and consequentially relevant to the issues of unsound mind and undue influence. I accept that, on this indirect basis, such wide ranging evidence was relevant. Accordingly, the Court was obliged to listen at length to very detailed evidence, often of a personal nature, from which at times, few of the parties emerged with credit.

The background of the deceased

7. The deceased died aged 79 years. At the age of 14 years he left his family in Kwangtung Province and came by himself to Hong Kong. He believed that a command of English was essential to success in Hong Kong. After acquiring sufficient English language skills, he became an English Secretary in the Hong Kong Government while in the evenings he studied and passed North American examinations for a building construction qualification. After leaving Government he worked in the local construction industry, before forming his own company Ching Hing Construction Co. Ltd. ('CHC') in 1954. CHC prospered and the deceased and his wife, who were original shareholders and the Permanent Directors of CHC, also acquired substantial assets in their own names.

8. The deceased was injured in an accident on a construction site in the 1950s. Later from 1960 he suffered a series of strokes which left him paralysed on his left side and affected his speech. During his last years, when he lived at Grenville House, he was restricted to using a wheel chair. However, he continued to live a remarkably active life. Until his final illness, he adhered to a very strict daily routine. This involved rising in the morning and after breakfast undergoing physiotherapy. He employed 3 nurses who worked in shifts on a 24 hour basis. After physiotherapy he read the English newspapers and had his nurses read to him the Chinese newspapers. He was then driven to the family property at Fei Ngo Shan in Kowloon, where he swam in one the property's 3 swimming pools. After returning to Grenville House for lunch, he was driven to his 72 feet private boat in the afternoon in which he spent several hours cruising including, in the summer, an afternoon swim in the sea. On returning home he watched television, particularly the news and financial reports. For this purpose he had two television receivers installed in his living room, so that he could watch two channels at the same time. He remained Chairman of Directors of CHC until his death.

9. I am satisfied that the deceased was a powerful personality of strong character who was devoted to his wife and during his lifetime generously provided for his family. In return he expected his children fully to realise their talents and demanded from them respect and filial piety. In describing his character, his daughter Henrietta stated, that his decision on arriving in Hong Kong to change his name from Ip Kwong Lam to Ip Ching Ping was relevant to how the, deceased saw himself. "Ching" may be translated as meaning "righteous" and "Ping" means "fair". CHC was also called after his own name. The deceased obtained British nationality. His high regard for proficiency in the English language, is shown by his own example and his custom of first reading the English newspapers himself and then having the Chinese newspapers read to him. He sent all of his 7 children to English speaking schools and to universities or other tertiary institutions in England. The two sons graduated with engineering degrees from the University of London and then remained in England to obtain English professional engineering qualifications. A number of his daughters obtained comparable English qualifications in other disciplines.

The deceased's wife and her will

10. The deceased and his wife had a long and harmonious marriage and deep affection existed between then. During deceased's working life, his wife accompanied him to his office each day and herself played a prominent part in CHC's business. After suffering a series of strokes, deceased visited the office less frequently but his wife continued to attend daily. If the deceased was Chairman of the Board, his wife for many years up to her death, was clearly in effect the Chief Executive. Indeed, her dominant role caused Henry not to work for CHC but to set up his own civil engineering and construction business. Later after friction developed between Sammy and his mother, he ceased for the last 4 or 5 years of her life, to work actively for CHC, the day to day business of which was conducted by the mother.

11. I am satisfied that deceased's wife played a major part in the development of CHC and the family's wealth, much of which was acquired in her own name. After the parents during their lifetime had made substantial gifts of land and other property to the children, the deceased's wife still left a large estate with a dutiable balance of $119,131,600 compared with the deceased's dutiable estate of $30,531,500. The will of deceased's wife was not disputed but its dispositions help to explain the present conflict which has arisen over deceased's will.

12. In addition to jewellery, she left all her CHC shares to her daughters in equal shares. She devised the parents home at Grenville House to her daughter Roseanna, subject to allowing her other children and grandchildren reasonable use of the premises during Roseanna's lifetime. Her remaining shares and real property were left to all of her l children in equal shares. The Estate has not been wound up and distributed but continues to tie administered by the trustees. I was informed that currently each of the 7 children receive about $500,000 per annum by way of dividend. I was not informed what proportion the CHC shares bore, to the residue of the Estate left equally to all 7 children but do note that at one stage the probate valuation of the CHC shares was $16,548,000. I infer that by far the greater part of the estate comprised other assets which, unlike the CHC shares, were shared equally by all 7 children.

The CHC shares

13. The decision by the deceased's wife to leave all her CHC shares to the daughters and none to the sons, clearly upset the sons and was an early indication of the potential problems which might arise between the children over the deceased's will. The original capital of CHC was in 1954 divided into 150 shares later increased to 770 shares. On incorporation the deceased and his wife each held 40 shares, Henry 30 shares, Sammy 30 shares and the oldest daughter Loretta 10 shares. Immediately before deceased's wife died, he held 198 shares, his wife 197 shares, Henry 77 shares, Sammy 77 shares, and each of the 5 daughters 33 shares. At that time Henry's own family and Sammy together held 166 shares against the daughters 165 shares. Once the mother's shares were transferred to the daughters they would hold 362 shares. Those shares were in fact transferred on 17th February 1982 after the administration of the mother's estate was completed. It is of interest that before that date, the daughters registered as distinct from beneficial shareholdings, already exceeded their brothers, as a result of the deceased on 27th July 1981, transferring to each of his daughters, 10 of his shares. As at that date the registered shareholdings of the daughters totalled 215 shares compared with the brothers related shareholdings, including Henry's family, of 209 shares. The deceased had therefore by that inter vivos transfer after his wife had died and her will had been read but before the executrices transferred her shares to the daughters, secured a majority registered shareholding for the daughters as against the sons, by transferring suffficient of his own shares to them.

The reading of the will of deceased's wife

14. In accordance with Chinese custom, 15th May 1981 was an important day for the family, as it was the second seventh day anniversary of deceased's wife's death. The day was also significant for two meetings. In the afternoon the deceased's wife's will was read; in the evening Hear attempted to hold a directors meeting of CHC at Grenville House. The will was read out by the family solicitor, Mr. Gallant Y.T. Ho, during the afternoon at Grenville House in the present of deceased and all 7 children. Both Henry and Sammy looked displeased at their mother's action in leaving all her CHC shares to her daughters and none to her sons.

15. It is common ground that Henry did not voice his displeasure at that meeting. Sammy, who I am satisfied was less experienced and more impulsive than Henry, did not remain silent but complained that as a result of their mother's will, the daughters could now control CHC. The deceased intervened with words to the effect of "You wait and see my will. " In evidence Satiny stated that the deceased spoke those words to placate him and led him to expect that the deceased would provide in his will for his CHC shares to go to his sons. According to the daughters, Sammy's implied criticism of his mother angered the deceased and he used those words to caution Sammy not to criticise his mother and that such disrespect might affect provisions in his own will. Mr. Callant Ho, who gave evidence, confirmed the daughters evidence that Sammy's comments made the deceased angry. Mr. Ho thought that the deceased intervened both to calm Sammy down and also to warn the sons not to upset him, for he still had the power to leave his estate as he wished. I am satisfied that Sammy was mistaken in his assessment of the deceased's reaction. I find that the deceased was upset by Sammy's comments which he considered to be a disrespectful criticism of his wife's will.

CHC Meetings

                    (a)     15th May 1981 directors meeting

16. On the evening of 15th May 1981, the family were gathered at Grenville House to pay their respects to deceased's wife. Henry arrived late and while he had not spoken out when the will had been read, he had put the intervening time to use. He arrived with draft minutes for a CHC directors meeting. The deceased's wife having died, the remaining directors at this time were the deceased, Henry and Sammy. Henry invited Roseanna to attend but asked the other daughters to retire to a bedroom. He then asked his father to sign the draft minutes. These provided for a resolution appointing Henry and Sammy joint managing directors of CHC and for the deceased to transfer 98 of his CHC shares to Henry and 98 shares to Sammy leaving him with 1 remaining share. The evidence was that while the resolution would enable the sons to manage CHC, Henry indicated that the transfer of shares would not be put into effect until the deceased died. The deceased considered the draft minutes, spoke to each of his daughters in turn and then refused to sign the minute. I find that this attempt to protect the sons position in CAC was Henry's own proposal and was only supported by Sammy after it been advanced by Henry.

17. The contrasting reactions of Henry and Sammy to the news that their mother had not left them any shares in CHC is revealing. Henry, no longer employed by CHC, was a successful civil engineer carrying on his own practice. He took immediate formal steps to endeavour to ensure that at least his father's shares in CHC went to his sons. Sammy, not having established his own business, was dependent on CHC for employment. Both had failed to get on with their mother. Henry's reaction years earlier had been to leave and start up his own practice. Sammy lingered on hoping that at least when his mother ceased to be involved, that he would then play a more prominent role.

18. I accept Sammy's evidence that during his mother's lifetime she became hostile if he discussed business matters with the deceased and she went out of her way to stop Sammy playing an active part in CHC. For the last 4 or 5 years of her life she did not speak to Sammy. Sammy's allegations were more than confirmed by Madam Maria Chan a former nurse employed by deceased from 1969 to 1974. Madam Chan stated that the deceased's wife did not like the sons talking to deceased about business matters and instructed her to tell Sammy, when he telephoned to talk to his father, that he was resting and could not be disturbed. She recollected Sammy telephoning and pleading to be allowed to talk to his father. When the deceased refused to sign the draft minutes, Henry responded by telling his father that he would resign director if his father did not sign. This annoyed the deceased who told Henry that "If you do not look after my Company, I will look after it myself. " On 21st May 1981 Henry gave CHC notice of his resignation as a director and asked that CHC waive the requirement under its Articles to give 1 month's notice of resignation.

                    (b)     23rd May 1981 directors meeting

19. A directors meeting of CHC was held on 23rd May 1981 chaired by deceased. The deceased proposed that Roseanna and Henrietta be appointed directors. Henry opposed their appointment. There was evidence that Henry's opposition angered the deceased and he called on Sammy to show filial piety by supporting his father. In the event Sammy abstained and the deceased exercised his casting vote to cause both Roseanna and Henrietta to be elected. Sammy stated in evidence that when he abstained he knew that would enable his father, by exercising his casting vote, to break the deadlock between his father and Henry, and achieve his wish to have his 2 daughters elected. It is unlikely that the deceased would have interpreted Sammy's abstention in that same supportive light.

20. The deceased and Sammy then both opposed the acceptance of Henry's resignation. Sammy moved that Henry be appointed a consultant but this was opposed by the deceased, who want Henry to remain as a director. Sammy then proposed that he himself be appointed manager. The deceased indicated that he preferred that Sammy and Roseanna be appointed joint managing directors but as he felt exhausted the meeting was adjourned.

                    (c)     30th May 1981 directors meeting

21. This meeting was called by the deceased to consider appointing himself as managing director. The meeting first considered a letter from Henry, who was not present, opposing the appointment of the deceased as managing director on the ground that because of his health he was unsuitable and supporting the appointment of Sammy and Roseanna as joint managing directors. Before the meeting went on to consider the appointment of the deceased, Sammy asked, or in the terminology of the minutes "insisted", that the unfinished business of the prior meeting, concerning his appointment with Roseanna as joint managing directors, be first voted upon. If CHC were not a family company developed by the deceased with his own money, then Sammy's request that the adjourned business be next considered would at least formally have been entirely reasonable.

22. At this stage CHC's solicitor intervened to explain that the deceased's suggestion at the, prior meeting had merely been an expression of his then wish and had not been elevated into a proposal. Roseanna observed that even if it were a proposal, it would have involved her acceptance of the position and if she did not accept, any resolution adopting the proposal would be useless. Henrietta suggested that the proposal should be considered but this annoyed the deceased and he also criticised Sammy for arguing on the subject. Sammy got up and left the meeting and the deceased was elected managing director. Henry's letter of resignation was accepted.

23. Other resolutions were also passed d affecting CHC's official signatories for a variety of documents. Henry was excluded from all these resolutions but in addition to resolutions authorising the deceased to sign, Sammy was appointed one of the signatories for tenders, building contracts and other documents in relation to the construction side of CHC's business. The alternative signatories for documents for the investment and property side of the business, were limited to the 3 daughters resident in Hong Kong. Sammy had not taken the extreme step of Henry and resigned but by being present at the meeting and speaking up in support of a proposal which the deceased abandoned had again, unlike Henry, personally confronted and annoyed the deceased.

                    (d)     27th July 1981 directors meeting

24. Sammy did not attend the directors meeting held on 27th July 1981 which elected Marion as a director. All 3 daughters resident in Hong long were now directors. Henrietta stated in evidence that before the meeting Sammy had asked her to request that his salary be increased from $3,000 to $12,000 per month. The minutes record that Henrietta did put forward Sammy's request but that the deceased objected that unless Sammy could prove that his contribution was greater than the other directors, it remain at $3,000. Sammy in evidence stated that when he returned from England he had been paid a relatively low salary by CHC but it was acceptable in view of what he then considered were his bright prospects in the Company. When he later was appointed a director, the amount he received remained unchanged and eventually was increased to $3,000. So far as he was concerned, it mattered not whether the income he received was described as salary or directors fees, for he regarded it as payment for the work he did for CHC.

25. At the time of his mother's death she had received $12,000 per month and all other directors $3,000. Sammy stated that in the month following her death, he was paid $12,000 and assumed that increased sum was paid to him by CHC for his expected wider responsibilities. But in the following month he was only paid $3,000. Sammy's evidence was that far from asking the meeting to increase his salary, his request was for the prior month's salary of $12,000 to be reinstated. There was no explanation from any of the witnesses as to why and how Sammy's salary for that one month had been increased to $12,000 but I accept his evidence as to what happened and as to the nature of his unsuccessful request to the meeting. This meeting also provided further contemporary evidence of the deceased's attitude to his sons. For it was at this meeting that the transfer by deceased of 10 of his own shares in CHC, to each of his daughters, was approved.

                (e)     4th October 1981 directors meeting

26. The friction developing between the deceased and Sammy was further highlighted by the minutes of the directors meeting of 4th October 1981. Sammy alone opposed the two resolutions passed. The first resolution approved payment of an interim dividend of $2,000 per share. According to Sammy the Company's prior practice was not to declare interim dividends and that at this particular time CHC itself required to retain the amount authorised as dividends, to protect its own liquidity. The other resolution approved an unsecured loan of $1 million to the deceased. In fact the loan was never drawn down by the deceased. I am satisfied that the deceased wanted the $1 million to be available to assist him to purchase the remaining 1/4th share in a property at 160 Prince Edward Road of which he owned 3/4th share.

27. The Prince Edward Road property was an early family home. An elderly cousin owned the 1/4th share and had expressed a desire to sell. In fact the deceased completed the purchase of the remaining 1/4th share from his cousin for $800,000 on 29th April 1982 from his own funds. Unfortunately, as Sammy conceded when he gave evidence, at the time he wrongly understood that the $1 million was not for the deceased but to assist Henrietta to purchase new rooms for her proposed surgery in World-Wide House. In fact that purchase, which in the event never proceeded, was to be made by I Company owned by Henrietta and her mother and required no financial assistance fom deceased. I accept Sammy's evidence that, had he known at the time that the $1 million loan was for the deceased's own personal use, he would not have voted against the proposal. But again this was an occasion where the deceased was entitled to be upset by Sammy's actions and feel that Sammy was being at least disrespectful to him.

                        (f)     1981 annual general meeting

28. The annual general meeting of CHC was held on 5th December 1981. Henry, Roseanna, Marion and Henrietta attended in person. The deceased, Loretta and Maimie were represented by proxy. Sammy did not attend in person or by proxy. The meeting was chaired by Henrietta and re-elected Roseanna, Marion and Henrietta as directors. Henry proposed Sammy for re-election as a director but his nomination lapsed for want of a seconder. In view of what had happened between Sammy and his sisters in the preceding weeks, the failure of any of his sisters to second the nomination was not surprising. A number of incidents, including a dispute on 30th October 1981 when Roseanna and Henrietta were injured, leading to criminal and civil proceedings, had brought Sammy's relationship with his sisters to their lowest level.

                (g)     5th December 1981 directors meeting

29. After the annual general meeting concluded at Wellington House, the three daughters returned to Grenville House where the deceased presided over a directors meeting. Sammy was no longer a director and resolutions were passed using this as the pretext requiring Sammy either to vacate his Wellington House office and Fei Ngo Shan home or, if he elected to remain, to pay rent. For Some years he had occupied these premises without payment of rent. Rent for his office was fixed at $12,000 per month and $22,000 for the Fei Ngo Shan property. CHC'S solicitors wrote to Sammy giving him notice of these terms and informing him that non-compliance would result in legal proceedings being issued for vacant possession. Sammy pave up vacant possession of the office but claimed the beneficial ownership of the Fei Ngo Shan property. A dispute over its ownership remains unresolved.

30. 27th October 1984 Extraordinary General Meeting

31. The minutes of the final meeting to which I was referred were of an extraordinary general meeting held on 27th October 1984 Several months after both this action and Henry's probate action were commenced. Although not relevant to the deceased's testamentary capacity, I refer to it for completeness and because it is one of the few rewarding episodes in what was otherwise a saga of unrelenting discord and disaffection. The meeting at which all of the deceased's children were present in person or by proxy, unanimously elected Sammy and Henry's son Arnold, as additional directors of CHC. In addition, Sammy's wife, although neither a director or shareholder, was invited to attend and allowed to speak. During their evidence Henrietta, who chaired the meeting, described CHC as a family Company whose procedure was casual and liberal; Sammy's wife expressed her appreciation to her sisters-in-law for the courtesy extended to her of being allowed to be present and speak at the meeting.

32. The earlier meetings, while important in themselves, were not held in isolation. During the same period other important family events occurred which are directly relevant to a consideration of the deceased's feelings and testamentary intentions. An important, if unfortunate incident, occurred on 30th October 1981. I have so far deferred referring to it in detail in order not to interrupt the chronology of the CHC meetings but it is important that they also be considered in the light of what occurred on 30th October 1981.

The 30th October 1981 incident

33. After Sammy's mother died on 2nd May 1981, he recommenced visiting his father at the family home, which by now was at Grenville House. During these visits he also often saw Roseanna, Marion and Henrietta who were either living at Grenville House or frequently visiting their father. Sammy usually made his visits late in the evening and there was evidence from the daughters that they considered that Sammy tended to keep talking to his father and tiring him after his usual bedtime. There were a number of occasions when they interrupted Sammy and indicated that it was time their father went to bed. By 30th October 1981 there had also been a number of incidents which had resulted in a degree of ill feeling developing between Sammy and at least some of his sisters. There had been the Sammy's disappointment at receiving no CHC shares under their mother's will; the unsuccessful attempt by Henry to obtain for the sons the father's shares; Sammy's hopes of at least being appointed joint managing director with Roseanne were defeated; and Sammy's failure to obtain or preserve the monthly payment of $12,000. Finally, at the directors meeting on 4th October 1981, Sammy had caused more ill feeling by alone voting against the deceased and his sisters on the proposals for an interim dividend and the $l million loan to the deceased.

34. For some time Sammy had been feeling that his sisters, like his mother before them, were now preventing him from playing a fuller role in CHC. To him they seemed always to be present when he called to talk to his father at Grenville House and he felt they were obstructing his attempt to improve his relationship with the deceased. Some indication of Sammy's feeling during this period was his action during August 1981 of breaking his mother's framed photograph displayed on an altar at Grenville House and tearing up the photograph. Roseanna was able to tidy up the mess Sammy caused before it could be seen by the deceased. But she further annoyed Sammy by telling him that she had photographs taken of the damage before it was cleared up. In Court, Sammy apologised for his conduct on this occasion and explained he was under stress at the time. I record that after the deceased's death, Sammy was given photographs by his sisters of his parents, which are mounted on an altar at his Fei Ngo Shan hence and that since then at least some of his sisters visit him and his wife each Chinese New Year and pay their respects to their parents at that altar.

35. However, it was against that background of tension and ill feeling, that the events of 30th October 1981 occurred. Sammy called at Grenville House that evening when Henrietta explained to Sammy, in front of deceased, the action she was taken to deal with a sub-contracting problem which had arisen at a CHC contract site in Chaiwan. Sammy disagreed with the action Henrietta had taken which angered the deceased, as it was in fact his own instructions which Henrietta was merely carrying out. According to Roseanna and Henrietta, it was approaching midnight and the deceased motioned to his nurses to take hime to his bedroom. However, as Sammy was sitting next to his father the nurses were unable readily to approach him.

36. Roseanna then stood up and stepped between Sammy and the deceased, with the intention of assisting the nurses to wheel the deceased into his bedroom. According to the daughters, Sammy then grabbed Roseanna and pulled her away towards a glass panel. Henrietta stated that she was concerned for Roseanna's safety and stood up and approached Sammy. The daughters claimed Sammy swung his fists at both of them. Henrietta suffered a broken nose; Roseanna a cut lip. Sammy contended that he was grabbed by Roseanna and then Henrietta stood up and came towards him in a karate pose. Sammy alleged that in self-defence he swung at both sisters and unfortunately inflicted the injuries already described, at the same time injuring his thumb. Sammy complained to his father, who witnessesd this unfortunate incident, that he had been attacked by his sisters but his father retorted by telling Sammy "You hit people but you say people hit you. "

37. The Police were called. Sammy, Roseanna and Henrietta were taken to the Police Station where, after visiting Queen Mary Hospital, they were released on bail. Sammy was later charged with assault causing actual bodily harm to Henrietta and common assault of Roseanna. In the event the first charge was reduced to common assault; pleas of guilty were entered; Sammy vas granted an absolute discharge with no conviction recorded but ordered to pay his sisters medical expenses. The facts agreed between the prosecution and Sammy's solicitors were that a dispute developed after a family argument and that Henrietta had first slapped Sammy. In mitigation Sammy's Counsel had explained that Sammy had acted in self-defence; was suffering from stress; produced a repot from a neurologist that Sammy required to have an operation to remove a pituitary tumour; and apologised for his part in the incident. In fact Sammy went to the United States on 1st May 1982 and underwent surgery for the removal of the pituitary tumour.

38. Roseanna and Henrietta were upset that the agreed facts, on which their opinions had not been sought, in their view wrongly stated that Henrietta had first hit Sammy. On two occasions they unsuccessfully asked the Attorney General to apply for a review. Counsel for Sammy pointed to this as evidence of deep hatred on the part of the sisters for their brother, submitting that the only reason for seeking a review was to attempt to secure a more severe sentence. The sisters denied this allegation. I accept their evidence that their concern was not to have the sentence increased but to have the facts reviewed and altered to accord with their view that Sammy had first attacked them.

39. The sisters on 4th November 1981 commenced High Court Action No. 7756/81 for injunctions, inter alia, restraining Sammy from entering the Grenville House premises and for damages. The deceased was aged 77 years at the time of this incident and whatever its factual nuances, must have been gravely upset by what happened. The deceased shared his daughters view that Sammy had attacked them and on the evidence adduced before this Court that was certainly a reasonable assessment of what occurred. It was unfortunate this incident did not end with the criminal proceedings in the magistrates Court. In the daughters civil action they and the deceased filed a number of affirmations in relation to a series of interlocutory proceedings and Sammy filed affirmations in reply. I accept the deceased's affirmations dated 3rd November 1981 and 17th November 1981 as evidence of his attitude towards Sammy at those dates before the will was executed.

40. The deceased's affirmation dated 4th November 1982 was completed well after the date of his will. However, it also provides some insight into the deceased's mind at that later stage and is also relevant. From these affirmations it is clear that the deceased considered that he had substantial grounds on which to be critical of his son. The participation of the parties and the deceased in the adversarial nature of those strongly contested proceedings, not only reflected but lamentably must also have increased, the ill feeling between the parties. The deceased, although not a party to the proceedings, was directly involved.

Sammy's wedding

41. The ill feeling between Sammy and his father was further increased by various often innocent actions by Sammy and his fiancee, which later had adverse consequences, out of all proportion to their apparent initial importance. When the deceased's wife died on 2nd May 1981, Sammy was still unmarried. There was evidence from Sammy's cousin, Mr. Ip Man Por, that the deceased looked forward to Sammy marrying and was concerned that he had for so long remained unmarried. On 25th May 1981, very shortly after the deceased's wife death when the family would certainly still have been in mourning, Henry hosted a dinner party in order to introduce Sammy to Regina Lau whom he later married. Regina had educational qualifications which could have been expected to have met with the deceased's approval. She had graduated from Hong Kong University with a Bachelor of Arts in English literature, from Glasgow University with a Master of Letters and later graduated with a Master of Science degree from Stanford University. In August 1981 she first visited Grenville House for dinner after which the deceased questioned her about her education and background, when his response appeared to be favourable. In September 1981 Sammy and Regina decided to get married. There was no formal engagement but they informed the deceased and other relatives and friends.

42. Regina's impression was that the deceased was pleased to learn of the forthcoming marriage. The only warning he gave was to make sure that they really wished to marry so that that they would not later consider divorce. In view of his traditional views and the unhappiness caused by the divorces of some of his other children, one of which precipitated the deceased leaving Hong Kong to go on a world tour, that comment was not surprising. In the succeeding weeks Sammy regularly brought Regina to dinner at Grenville House but after an apparently friendly initial reception both Sammy and particularly Regina, noticed that deceased, Roseanna and Marion became cooler towards the marriage and that the latter two daughters at times displayed hostility towards Regina. Sammy and Regina sensed that Roseanna and Marion influenced the deceased's views. Sammy and Regina were married on 10th December 1981. Neither the deceased or any of his daughters attended the wedding.

43. A number of explanations were given for the family's change of attitude. According to the sisters, the deceased never objected to the wedding but only to the selected date. They pointed out that their mother was not buried until four days after the wedding and that the wedding was held when the family was still in mourning. The wife's burial was long delayed. She died on 2nd May 1981 but deceased wished here to be buried and not cremated. However, no burial plot was available, so arrangements were made for her body to repose at the Tung Wah Funeral Parlour, until a burial plot was available. A plot would only be available at some indeterminate time in the future. According to Regina, the family were no longer in mourning when Sammy and she applied to the Registrar of Marriages for a marriage date. When they were informed they could be married on 10th December 1981 they had not been informed that any plot was yet available for the burial of Sammy's mother. Sammy stated that if they had then known of the burial date, they would have altered their wedding date. I accept that evidence. I also accept the evidence obtained from the Director of Home Affairs that under present day practice mourning lasts for 100 days. In that event the normal period of mourning would have expired on 10th August 1981, although the Director was not asked to comment whether that period would be affected by any delay in the burial of a deceased.

44. The fact that the wedding took place before his wife was buried, clearly offended the deceased as is clear from one of his affirmations in his daughters injunction proceedings. The daughters stated in evidence that if the wedding had taken place quietly and privately, their father would not have disapproved but he was upset that a lavish wedding party was held. Sammy and Regina stated that a wedding party was held for guests seated at 39 tables and that in relative terms it was not a lavish celebration. Regina observed that when they told the deceased they were going to marry, he said that to give face they must have a wedding party and when the question of cost was raised replied that he had a lot of money.

45. There were clearly discussions at least between Sammy and the deceased over wedding costs and on this question too, the evidence was divided. According to some of the sisters, Sammy asked his father for $800,000 to cover the costs of the wedding. Sammy denied this allegation. Regina denied that she ever asked for or discussed wedding expenses with the deceased. Sammy stated that his own original estimate was that it would cost $300,000 to renovate and redecorate Fei Ngo Shan and $300,000 for the wedding. He stated that he once mentioned these sums to the deceased, who indicated that he could contribute up to $200,000. In fact Sammy paid for all the wedding costs which amounted to about $400,000

46. So far as the wedding arrangements affected the relationship of the deceased with Sammy, the more significant and unfortunate incident concerned the wedding invitations. Sammy and Regina arranged for them to be printed and they included the deceased's name. After printing but before distribution, Sammy took to his office in Wellington House a sufficient number for his own relatives and friends. Sammy stated that he assumed that the deceased would have no objection to his name being on the invitations but agreed that he did not first discuss the form of the invitations with the deceased. Unknown to Sammy, one of the invitations, presumably taken from his office, came into the deceased's possession. The deceased was very annoyed when he discovered that his name was included in the invitation at a time when his wife was still not buried. He then took the extreme step of issuing a High Court action for an injunction restraining Sammy from sending out those particular invitations.

47. However, there was other evidence which confirmed that while the deceased was upset about the invitations and the timing of the wedding, the marriage had his approval. After he was informed of the proposed marriage he visited Sammy at Fei Ngo Shan when Regina was also present. He asked to be wheeled into Sammy's flat and inspected its condition. After the inspection, he told Sammy and Regina that it required repainting, wall to wall carpeting and air-conditioning. He then asked his nurse to request Roseanna, who was in his own nearby Fei Ngo Shan flat and who attended to her father's personal expenditure, to come to Sammy's flat. When she arrived he told her of the need to have Sammy's flat painted, carpeted and air-conditioned. This evidence is open to the inference that the deceased was contemplating paying for this work. Roseanna rejoined that Sammy and Regina were old enough to attend to these matters themselves. In the event the deceased made no contribution to this work. Regina also advanced this incident as one of several examples of where Roseanna was less than co-operative and had the power to influence the deceased.

Fei Ngo Shan property

48. During the same period a dispute also arose over Sammy's possession of Flat C of the Fei Ngo Shan property. The apparent contradictory steps taken by or with approval of the deceased were, it was submitted, an indication of his mental state. The deceased in 1965 decided to buy a large building site of more than 40,000 square feet at Fei Ngo Shan being Lot 1940 and to build on that site a family home. At the time of purchase he was unable to attend to the legal formalities and these were completed by Henry and involved the land being registered in Henry's name. The deceased had plans prepared for CHC to build on the land 3 large flats and l small flat together with 3 swimming pools and related facilities. These buildings were completed and the family were living in Fei Ngo Shan by 1966.

49. After the deceased suffered his first stroke he moved to Hong Island occupying first a property in Bowen Road and later the Grenville House premises. These moves were to reduce the time and distance between home and office. According to Sammy, the deceased told him after the Fei Ngo Shan buildings were completed, that Flat A was for Henry, Flat B for Sammy, Flat C for deceased and the smaller Flat D for his driver. Henry never occupied Flat A. In fact Flat A came to be occupied by the deceased, Flat B has generally remained empty and Flat C has throughout been used by Sammy as his home. After moving to Hong Kong Island, the deceased, as already recorded, continued to visit Fei Ngo Shan nearly daily, using on his visits Flat A and the swimming pools. At least during the period from 8th December 1981 to 28th December 1981, when the deceased was giving his solicitors instructions for his will, the disposition of Fei Ngo Shan caused the deceased considerable concern. On two occasions Roseanna and Marion conveyed messages to his solicitors for a provision to be included in his will leaving the Fei Ngo Shan property equally to Henry and Sammy. The deceased was also anxious to avoid the possibility of his daughter executrices being involved in any dispute with Henry over the disposition of Fei Ngo Shan. The deceased considered that while the property was registered in the name of Henry, he held it in trust for the deceased. The deceased even went so far as to suggest to his solicitors a detailed clause leaving the property to his two sons.

50. The deceased's solicitors seemed to be over concerned with the fact that difficulties could still arise, in view of the fact that the property was registered in the name of Henry. If the provision the deceased sought had been included in the will, it would have been a clear statement of the deceased's testamentary intent. Whether Henry would later dispute that he only held the property in trust for the deceased, would be a second and subsequent issue, which might never arise. What is clear from the daughters evidence and the solicitors attendance notes dated 16th and 17th December 1981, was that the deceased wished to leave Fei Ngo Shan to his sons in equal shares.

51. Yet at the directors meeting of CHC chaired by the deceased on 5th December 1981 after Sammy had failed to be re-elected a director, resolutions were passed requiring Sammy to vacate the flat he occupied at Fei Ngo Shan or pay rent of $22,000 per month. The resolution in effect surprisingly asserted, that Sammy's occupation of Fei Ngo Shan was by virtue of his status as a director of CHC. By now he had lost that status. CHC had never owned the Fei Ngo Shan property. The property had always been registered in the name of Henry and the evidence up to this stage was that he held it in trust for the deceased.

52. The confusion shown by the minute, when CHC did not own Fei Ngo Shan and could not give Sammy any lawful notice to quit, may be explained by the fact that where ownership of assets is divided between a family company and various of its members, the separate legal personality of each, is at times overlooked. Whatever the explanation certain dates are clearly established. On 5th December 1981 the deceased chaired the CHC meeting requiring Sammy to vacate or pay rent; the solicitors letter conveying notice of those resolutions was sent to Sammy on 9th December 1981; his solicitors replied on 19th December 1981; CHC's solicitors wrote again on 28th December 1981 informing Sammy that if he did not comply with the terms of their prior letter, legal proceedings for vacant possession would be commenced.

53. Yet in the middle of this correspondence the deceased was instructing the same solicitors, certainly on 16th and 17th December 1981, that he wanted Fei Ngo Shan left to Sammy and his brother in equal shares. In those testamentary instructions, the deceased's only worry was whether the fact that the property was registered in Henry's name, might result in his eldest son creating difficulties in the transfer of one-half of the property to Sammy.

54. Counsel submitted on behalf of Sammy that the deceased's actions as CHC's chairman in attempting to remove Sammy from Fei Ngo Shan, are inconsistent with his testamentary intention at the same time to leave to Sammy half of Fei Ngo Shan. I note that the testamentary intention was subsequent to the directors meeting, so there was the opportunity for the deceased to have changed his mind. But the solicitors correspondence pressing for vacant possession if rent was not paid, continued after 17th December 1981. This may be another case, as seems also to have occurred over the assault incident and the wedding invitations, where a problem which may have been resolved within the family if reasonable goodwill were displayed, became exacerbated by the family's propensity to rush and obtain legal advice. In considering the deceased's mental state, I will give full weight to the apparent contradictions of some of his actions, in relation to the Fei Ngo Shan property.

Various wills

55. A number of different wills were adduced as evidence of the deceased's testamentary behaviour. The first wills in order of time, were mutual wills of the deceased and his wife executed on 5th July 1967. These were probably executed before they left on their first world tour. They provided that if either did not survive the other for one month, Henry and Sammy were executors and the sons were to receive double the shares of the daughters. In 1974 shortly before the deceased went on his second world tour, without his wife, he made a new will appointing his wife sole executrix and leaving everything to her. On 17th January 1981 his wife made her last will the contents of which have already been considered.

56. On 8th December 1981 the deceased instructed Mr. Gallant Ho to prepare a new will. These instructions were for his estate to be left to his 5 daughters in equal shares and for a clause stating that he was not leaving anything to his sons as they had been dishonest. Mr. Ho asked the deceased to reconsider making that statement about his sons and suggested that a statement could be included that the sons were already well provided for if that were the position. The deceased insisted that the reference to dishonesty be included. A will in accordance with those instructions was prepared but on 14th December 1981, Marion telephoned Mr. Ismail Ma of Gallant Y.T. Ho & Co. informing him that execution would have to be delayed, as the deceased was about to enter hospital.

57. Mr. Ma completed an attendance note on 16th December 1981, which indicated that on that day or the previous day, Roseanna had called on him with a message from the deceased, that he wanted to add a clause leaving the Fei Ngo Shan property to his sons in equal shares. The potential difficulty caused by the registration of the property in henry's name was explained to Roseanna who must have conveyed that information to the deceased. For on 17th December 1981, Mr. Ma in another attendance note, recorded that Marion had telephoned him confirming the deceased's wish that the will leave Fei Ngo Shan to the sons in equal shares. Mr. Ma repeated to her the possible difficulties which might arise due to Fei Ngo Shan being registered in Henry's name.

58. I would interpolate here that if a will including those instructions had been executed, its practical effect would probably have been to provide for a more or less equal distribution of the deceased's estate between all 7 children. For the sons half-share of Fei Ngo Shan, in value, would have approached and may even have exceeded, each daughters ultimate one-fifth share of the dutiable estate of $30,531,500. The Fei Ngo Shan property was not included in that dutiable estate of $30,531,500. When on 17th December 1981, Mr. Ma had repeated to Marion the problem caused by Fei Ngo Shan being registered in Henry's name, she asked him to discuss with Mr. Ho, her father's wish to leave Fei Ngo Shan to the sons. Later that day or on the following day, Mr. Ma was telephoned by Roseanna, who told him that the deceased wished to vary his instructions and requested that a new will be prepared leaving his property to all 7 children in equal shares. This will was taken by Mr. Ho on 24th December 1981 to Grenville House but the deceased declined to sign it, informing Mr. Ho that he was reconsidering the distribution of his estate.

59. On 28th December 1981 Mr. Ho again attended on the deceased, when he received instuctions for his estate to be left to his daughters in unequal shares. One-half of his estate was to be divided equally between his 5 daughters. The other half was to be divided between his 3 daughter executrices. I record that in addition to their future duties as executrices, those 3 daughters were the daughters then living in Hong Kong, who in his last years had been in a position to give him greater assistance than his two other daughters resident in Canada and Switzerland.

60. A draft will incorporating these instructions was settled by Counsel, engrossed and finally executed by the deceased on 6th January 1982. The will was taken on that day to Grenville House by Mr. Ismail Ma accompanied by a then articled clerk, Miss Regina Higgins. On arrival at Grenville House they also found Dr. Joseph Y.C. Pan, who had being treating the deceased since 1968, in attendance. Before the will was executed Dr. Pan examined the deceased and gave Mr. Ma a certificate in the following terms :

"This is to certify that I have seen and examined Mr. Ip Ching Ping today. He is of sound mind and capable of understanding others and making himself understood by others adequately. "

61. When Dr. Pan gave evidence he confirmed the contents of his certificate. He pointed out that as a result of the strokes the deceased had suffered, his speech had been affected. On the day of his examination on 6th January 1982, Dr. Pan was emphatic that the deceased was in full control of his mental faculties and despite his speech problem, was able to express himself.

62. Mr. Ma gave evidence that before execution, he explained the contents of the will to the deceased and he satisfied himself that the deceased understood and approved its contents. The will was then duly executed by the deceased in the sight and presence of Mr. Ma and Miss Higgins who signed as attesting witnesses, in the sight and presence of the deceased and each other. The deceased died the following year on 12th April 1983 without revoking the will of 6th January 1982 or making any other testamentary dispositions.

63. Against this factual background I now go on to consider the two main issues which have arisen in this action, namely whether the deceased was of sound mind and whether he was subject to undue influence.

64. Whether the deceased was of unsound mind

65. No person is capable of making a will unless he is of sound mind. In 'Williams Mortimer and Sunnucks On Executors, Administrators and Probate' (16th Edn) page 147, that proposition is developed in these terms :

"The testator's mind must be sound to be capable of forming the testamentary intentions embodied in the will; his memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries; his understanding must be sound so that he may comprehend their various ties with him by blood or friendship and their claims on these or other grounds upon his testamentary bounty. "

66. The plaintiffs accept that the burden is upon them affirmatively to establish that the deceased was of sound mind when he executed the will. Counsel for the plaintiffs submitted that the evidence showed that the deceased had given careful and detailed consideration to the provisions of his will and that it had been professionally drawn up by solicitors after he had received their advice. It was accepted that for some years the deceased had suffered from physical disabilities but his active daily routine showed he remained a man of some strength while continued participation in the business affairs of CHC and interest in other matters, was evidence of his mental alertness. Finally, it was emphasised that not only was Mr. Ma. satisfied that deceased understood and approved of the contents of the will but that Dr. Pan, who for many years had been his doctor, attended on the signing of the will and gave his written certificate. The will, in Counsel's submission was therefore executed in accordance with what Williams Mortimer and Sunnucks (supra) at page 152 refer to as "the golden rule. "

67. To the extent that the reasonableness of a will may be evidence of a testator's soundness of      mind, Counsel for the plaintiffs pointed to the gifts made to Sammy during his lifetime, to the substantial provision made for him under his mother's will and that deceased's estate in any event was relatively small. I record that on his return from England, Sammy received the gift of the Hing Lee Factory Building at 37 Ivy Street, Tai Kok Tsui containing 6 industrial flats and later his parents gave him a top floor flat at Repulse Bay Garden. His brother and sisters received comparable gifts during their parents lifetime. It was submitted that in the crucial period after the deceased's wife's death until he made his will, there were a number of incidents which reasonably justified excluding the sons from his will.

68. These included so far as CHC was concerned Sammy's support for Henry's initial proposal to take over control of CHC; Sammy's later protests when he failed to be appointed either manager or joint managing director; his final efforts to obtain the deceased's agreement to create a new subsidiary under the control of the sons exclusively responsible for the construction side of CHC's business; and Sammy's failure to give his full support to the deceased at directors meeting. More importantly, I was referred to the conservative character of the deceased, and his long, close and affectionate relationship with his wife.

69. I was reminded of Sammy's criticism of his mother's will and his subsequent conduct assaulting his sisters and the timing and style of his marriage. The adverse effect of Sammy's conduct, it was submitted, was further aggravated by the steps he took and allegations he made, in the various civil proceedings. All these factors, in the plaintiffs submission, reasonably entitled the deceased to believe that Sammy had shown disrespect and disloyalty to deceased and his wife. In those circumstances and in view of the earlier provision made for Sammy, it was submitted, that it was not surprising that Sammy was excluded from the will.

70. Counsel for Sammy submitted that the facts established in evidence, clearly showed that the deceased suffered from an irrational delusion in relation to Sammy and was of unsound mind when he made the will. I was referred to the provisions of Clause 7 of the will which alleged that the sons were dishonest and it was submitted that the statements in that clause were central to the issue of unsoundness of mind. Counsel emphasised that the deceased included that clause against the considered and repeated advice of his solicitors and that none of the daughters were able to give any example of either sons alleged dishonesty. The irrational mind shown by those allegations went to the root of the sons disinheritance, for that was the express ground upon which they were excluded from the will.

71. The traditional values held by the deceased would in the normal course, it was submitted, have led a rational testator to make at least equal provision for sons compared to daughters. That approach had been reflected in the revoked 1967 will. The deceased's indecision in giving instructions for 3 different wills between 8th and 28th December 1981 and his contradictory instructions over the Fei Ngo property during the same period were, it was submitted, other acts which pointed to irrationality.

72. Counsel submitted that the defence accepted that deceased may otherwise have been of sound mind but that his false belief that his sons were dishonest, not only showed that he suffered from a delusion but it clearly had an operative effect on the decision he made to exclude his sons from any benefit under his will. On this issue I was referred to Boughton v. Knight (1973) LR 3 p & D 64 the accurate headnote of which reads :

"A man, moved by capricious, frivolous, mean or even bad motives, may disinherit wholly or partially his children and leave his property to strangers. He may take an unduly harsh view of the character and conduct of his children, but there is a limit beyond which it will cease to be a question of harsh unreasonable judgment and then the repulsion which a parent exhibits to his child must be held to proceed from some mental defect. If such repulsion, amounting to a delusion as to character, is shown to have existed previous to the execution of his will, it will be for the party setting up that document to establish that it was inoperative when the will was made and the jury in determing whether or not the: delusion was operative, will have regard to the contents of the will and the circumstances surrounding the execution of it. "

73. On the question of delusion I was also referred to Singh v. Amirchand (1948) AC 161 and in particular to the earlier authorities cited therein of Banks v. Goodfellow (1870) LR 5 QB 549 and Sivewright v. Sivewright's Trustees (1920) SC (HL) 63. In considering whether any inference may be drawn that a testator is suffering from a delusion, the proper approach is contained in the summing up of Boughton v. Knight at page 68 :

"You must not arbitrarily take your own mind as the measure, in this sense, that you should say, I do not believe such and such a thing, and therefore the man who does believe it is insane. Nay more; you must not say, I should not have believed such and such a thing, therefore the man who did believe it is insane. But you must of necessity put to yourself this question and answer it : Can I understand how any man in possession of his senses could have believed such and such a thing?"

74. On the evidence adduced I am satisfied that the deceased could reasonably have reached the conclusion that Sammy had shown irreverence towards his mother and at times had failed to support the deceased. The failure to support the deceased could on occasion, have reasonably been considered by a sane testator of the deceased's character and family circumstances, to have amounted to disloyalty and lack of filial piety. At the same time I am satisfied that Sammy never defrauded or cheated the deceased. Indeed, with the principal exception of Sammy's actions on 30th October 1981 towards his sisters, I am satisfied that on most occasions he acted in good faith, if at times ingenuously. With the advantage of hindsight I am sure he would have acted on some occasions with greater sensitivity. I accept that more than once, Sammy must have been exasperated at how innocent moves on his part, quickly resulted in major adverse consequences, which often destroyed the improved relationship he attempted to develop with the deceased.

75. To what extent, if any, does the statement in Clause 7 that the sons were dishonest, provide evidence that the deceased suffered from a delusion? Counsel for the plaintiff submitted that the sons actions were at least disrespectful and he was entitled to equate disrespect with dishonesty. The law more frequently deals with dishonesty in a criminal context, where it is a specific ingredient of theft and related offences. In the present case the Court is concerned with the meaning of the word in normal everyday useage. The word is often and perhaps increasingly used, to describe persons wanting in honesty to the extent that they are not merely disrespectful or discreditable but cheat and defraud others.

76. However, "dishonest" also has a less heinous meaning and includes dishonourable, untrustworthy, irreverent, disgraceful and shameful conduct. In the search for meaning it is usually a useful and often a salutary discipline to have recourse to a dictionary. I was not expressly referred to any dictionary but in passing note that the Court's understanding of the meaning of "dishonest", which it would have reached in any event, corresponds with the like meaning given in 'The Oxford English Dictionary'. In view of changes in any living language, I also parenthetically note that the 1987 edition of 'Collins Cobuild English Language Dictionary' similarly provides that "Someone who is dishonest is not truthful, honest or able to be trusted. "

77. I am satisfied that in considering the sons actions at least some of them could, in the mind of a person with the deceased's characteristics, have been categorised as disrespectful, disloyal, or shameful. There was also at least the occasion of the assault when the deceased, on good grounds, expressly indicated he considered that Sammy had been untruthful. On other matters, particularly in relation to CHC, the deceased had clearly lost his trust in his sons. I am satisfied on the established facts, that a sane person in the paternal position of the deceased, could have reached the conclusion that several of these epithets accurately described certain aspects of Sammy's conduct. I accept that from other points of view, the use of the word "dishonest" was at least unfortunate, but it was certainly not evidence of a delusion or unsound mind. I find that the defence's attack on the deceased's soundness of mind fails. I hold that the plaintiffs have established that when the deceased executed his will he was of sound mind, memory and understanding.

78. Whether the will was procured by undue influence

79. On this issue the burden passes to the defendant who must prove that the deceased was forced into doing something which he did not wish to do. Where there is evidence of persuasion and advice, that does not amount to undue influence, so long as the testator's free volition to accept or reject the persuasion or advice is not invaded. As the Privy Council declared in Baudains v. Richardson (1906) AC 169 undue influence cannot be found whatever the pressures a testator may be under, if the will he executes is not induced by fraud or coercion but is a free expression of his own wishes.

80. The submission that the deceased was subject to undue influence was based on a number of allegations some of which have already been considered. These included the fact that the deceased, being a man of traditional Chinese belief, gave instructions during December 1981 for a new ill disinheriting his sons at a time when he was living with some of his daughters and under the influence of all those residing in Hong Kong. The daughters powerful influence was claimed to be evident in the steps Roseanna and Marion took to limit Sammy's opportunities to speak to deceased and their alleged poisoning of the deceased's mind against Regina and Sammy, in relation to their wedding. The same influence, in relation to the will, was claimed to be particularly evident in the significant part that at least Roseanna and Marion played, in conveying instructions over the contents of the will from the deceased to his solicitors.

81. On the basis of the findings I have already made on the issue of soundness of mind, I am satisfied that the deceased's decision to exclude his sons from his will was consistent with him arriving at that conclusion of-his own free will. A close consideration of the instructions the daughters conveyed to the solicitors clearly demonstrates the defence complaint to be more superficial than real. Mr. Gallant Ho's evidence was that the daughters during that period expressed their concern that the deceased intended to disinherit his sons and attempted to persuade their father to give something to the sons but the deceased refused. I accept his evidence. I also accept that the deceased had several discussions over his will with Roseanna and Marion. When informed that he was disinheriting his sons, Roseanna told the deceased that the sons had already been punished enough, while Marion warned him that if he left out his sons, there would be trouble.

82. The oral evidence of Mr. Ho, Roseanna and Marion is reinforced by the written evidence of Mr. Ma's attendance memoranda which he also confirmed when he gave oral evidence. The attendance notes show that after the deceased on 8th December 1981 gave direct instructions to Mr. Ho leaving all his estate to his daughters, Roseanna and Marion conveyed further instructions concerning his will to the deceased's solicitors. All of the instructions conveyed by the daughters were adverse to their own interests and to the benefit of Sammy. On 16th December 1981, Roseanna asked the solicitors on the deceased's behalf that provision be made for Fei Ngo Shan to be left to the sons equally. On 17th December Marion conveyed a similar request to the deceased's solicitors. Later Roseanna asked Mr. Ma to draw up a new will under which the deceased's estate would be divided equally between all 7 children.

83. On the other hand, the original instructions of 8th December 1981 and the final instructions of 28th December 1981, under both of which the whole estate was left to the daughters and the sons were disinherited, were given by the deceased direct to Mr. Ho without any direct assistance or participation by the daughters. These facts also assisted in negating the earlier defence allegation that the varying instructions were evidence of irrational indecision. The deceased until his death had a strong and determined personality. One impression which clearly and consistently emerged from each of the daughters evidence, was the deference and submission they showed to him. This attitude was summed up by Marion, when she said that when the children were young, their mother told them that if their father said that the stone rolled up the mountain, the stone rolled up the mountain.

84. I have already found that there was no direct evidence of undue influence. I am equally satisfied, after considering all the relevant evidence, that the daughters also did not indirectly influence the deceased in respect of any of the testamentary dispositions or other provisions in the will. I hold that the defence has failed to establish undue influence.

Conclusion

85. I confirm that I have held that the deceased was of sound mind when he executed the will. I have further held that the will was not procured by undue influence. The plaintiffs are therefore entitled to a decree pronouncing for the force and validity of the will dated 6th January 1982 in solemn form.

86. The only remaining matters concern Clause 7 of the wil1 and costs. In his final submissions, Sammy's Counsel observed, that if it were not for the statement in Clause 7, the present action may not have been defended. I was reminded of the Court's power in its Probate jurisdiction, to exclude from probate of the will, words of an offensive character. Counsel then indicated that if Probate were granted, he would apply for Clause 7 to be excluded and undertook to make the appropriate application. Before determining the precise form of the formal order granting probate, I will hear Counsel further on this matter, if desired, and also on costs and any other consequential matters.