CHEUNG WAI LAN v. KWOK CHUNG CHEE

CACV 128/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 128 OF 2014

(ON APPEAL FROM HCAP NO. 9 OF 2009)

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REASONS FOR JUDGMENT AND
JUDGMENT ON COSTS

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Hon Kwan JA (giving the reasons for judgment and judgment on costs of the court):

1. After a five-day trial in March 2014, on 29 May 2014, Deputy High Court Judge Kent Yee handed down his judgment (“the Judgment”) in a contested probate action, ordering that the will of Kwok Sze deceased (“the deceased”) dated 19 November 2008 (“the 2008 Will”) be propounded in solemn form and be admitted to probate.  The plaintiff, Cheung Wing Lan (“Lan”) is one of the ten grandchildren of the deceased and the sole executor and major beneficiary under the 2008 Will.  The defendant, Kwok Chung Chee (“Chee”), is the eldest son of the deceased.  The judge resolved in favour of the plaintiff the contested issues of testamentary capacity of the deceased, and his knowledge and approval of the contents of the 2008 Will.

2. The judge made an order nisi that costs should follow the event, so Chee should pay Lan’s costs of the action including all costs reserved.  In his decision on 9 March 2015 (“the Decision”), the judge declined to vary the costs order nisi.

3. This is Chee’s appeal against the Judgment and the Decision.  At the conclusion of the hearing, we dismissed the appeal against the Judgment with reasons to be handed down.  We heard arguments of the appeal against the Decision and reserved our judgment on the costs below and on appeal.

The background and the judge’s findings

4. The background matters and the respective cases of the parties are set out in some detail in the Judgment at §§1 to 33, 61 to 144.  For present purpose and a proper understanding of the issues raised in this appeal, the salient matters and the judge’s findings may be summarised as follows.

5. The deceased and his late wife (“the mother”) were indigenous villagers of Ma Wan.  They had two sons, Chee and Chung Chiu (“Chiu”) and two daughters, Man Yi and Man Wah.  Man Yi is the mother of Lan.

6. The deceased immigrated to the UK in the late 1960s and worked there as a cook.  The mother and the four children joined him in 1975.

7. Chee was the only child to have received university education in the UK.  He returned to Hong Kong for good in 1985.  He is married with two sons.  He is a man of “considerable wealth” and accepts that he is in the best financial condition among his siblings[1].

8. Chiu and Man Wah have settled in the UK with their own families.  They operated a successful restaurant business together in London.

9. Man Yi is a divorcee.  She was divorced in 2003 but her husband had left her since the 1980s.  She has three children, Lan and two daughters Wan Yin and Wan Min, all born in the 1980s.  She lived in council housing and ran a takeaway business in east London.  She needed social security assistance.  Until 2005, she resided mostly in the UK.  Thereafter, she lived in Hong Kong for most of the time.

10. The deceased and the mother each owned a piece of land in Ma Wan.  A village house was built on each lot.  In the early 1990s, a big construction project was carried out in Ma Wan by a developer and to facilitate the project, the developer devised a scheme for indigenous villagers to surrender their land and village houses in exchange for other land in Ma Wan with new village houses of three storeys high to be built by the developer.  The deceased and the mother participated in the scheme and agreed to surrender their pieces of land, so under the scheme they would be entitled to two new village houses with six flats in total.  The scheme only came to fruition in 2004 and 2005.

11. In late 1992, at a family meeting of the deceased, the mother, the elder sister of the deceased (“the aunt”) and Chee, the deceased and the mother decided that each of their sons, Chee and Chiu, would be entitled to two flats and each of their daughters, Man Yi and Man Wah, would be entitled to one flat, in the two new village houses to be built by the developer (“the Plan”).

12. The mother made a will in England dated 29 March 1994, by which she bequeathed the ground floor and first floor of the existing village house on her land to Chiu and the second floor to Man Yi.  The judge found that the mother’s will was a “partial realisation” of the Plan[2].  He accepted the explanation of Chee that the next step to carry out the Plan was to transfer two floors of the deceased’s house to Chee and the remaining floor to Man Wah[3].

13. In 2000, shop premises in Plaistow, London in which the deceased had operated a takeaway business and which property was registered in the mother’s name was transferred to the three children of Man Yi (“the 2000 Transfer”).  The 2000 Transfer was not covered by the Plan because it involved a property in London and no objection was ever raised to it among the deceased’s children[4].

14. The mother passed away in March 2002.  In 2003, the new village house which the mother was entitled to receive from the developer was assigned to Man Yi and Chiu pursuant to the mother’s will, with Man Yi receiving one flat and Chiu receiving two flats.

15. On 10 September 2002, the deceased made a will (“the 2002 Will”) prepared by Messrs Rowdget W Young & Co (“RYC”), a firm of solicitors that Chee was familiar with.  By the 2002 Will, Chee was made the sole executor and sole beneficiary.  Chee explained that although he was the sole beneficiary, he was expected to carry out the Plan and he would transfer one of the three flats of the new village house of the deceased to Man Wah and keep the other two flats for himself.  The judge accepted this part of Chee’s evidence and found that the deceased had expected at one time that the 2002 Will would be administered in accordance with the Plan[5].

16. In March 2004, Chee was diagnosed with tonsil cancer and underwent intensive treatment.  The deceased was very concerned and returned to Hong Kong to visit his son.  Chee eventually made a full recovery but suffered heavy weight loss.  On 3 July 2004, the deceased instructed RYC to prepare another will (“the 2004 Will”), by which Chee was still appointed the sole executor but the estate was bequeathed to the four children of the deceased in equal shares.  As found by the judge, the deceased changed his mind by making the 2004 Will partly because of the grave illness of Chee, and, as a result, the relationship between Chee and the deceased turned sour.  Despite the protests raised by Chee, the deceased refused to stick to the Plan[6].  In early 2005, Chee and the aunt paid a visit to the deceased.  Chee again tried to persuade him to change his estate plan and the aunt asked for a share of the estate.  The deceased refused her flatly.  They had a row with the deceased.  This visit was described in the Judgment as “the last straw”[7].

17. In early 2005, the deceased was diagnosed with cancer in London and was expected to live for no more than six months[8].  In January 2005, he returned to live in Hong Kong and did not return to the UK thereafter.  Man Yi arranged for her son Lan, then a fresh university graduate, to accompany the deceased to fly back to Hong Kong.  Lan has since settled in Hong Kong, living with the deceased until his passing away in November 2008, first at the house of the mother, and later at the newly completed village house of the deceased as from May 2005.  Man Yi also came to live with the deceased not long after.

18. On 25 May 2005, the deceased and Lan opened a joint bank account (“the Joint Account”) and the deceased transferred $157,968.41, which represented the bulk of his savings, from an account in his sole name into the Joint Account.

19. On 30 June 2005, the deceased assigned the 2^nd floor and roof of his new village house to Man Yi by a deed of gift (“the 2005 Gift”).  According to Man Yi, whose evidence in this respect was accepted by the judge, when the deceased was diagnosed with cancer he asked her to return to Hong Kong with him so that she could take care of him in the final stage of his life.  She agreed to do so on the understanding that the deceased should transfer to her the second floor of his new house.  Chee was incensed when he found out about the 2005 Gift and had discussions with the deceased reminding him of the Plan.  When Man Wah learned about the dispute, she gave up any potential entitlement to one flat under the Plan.  The judge found that Chee could not accept that the deceased gave up the Plan and showed “undue generosity” to Man Yi in addition to the 2000 Transfer, and the 2005 Gift tore the deceased and Chee further apart[9].

20. In the latter half of 2005, the Hong Kong government introduced a scheme to allow indigenous villagers of Ma Wan to apply to construct a house on government land by way of a private treaty grant upon the payment of premium (“the 2005 Application”).  Due to insufficient land, each eligible family could only nominate one male member to apply and the applications would be decided by a ballot draw.  With the consent of the deceased and Chiu, Chee was nominated to make the application.  The ballot draw was held a year after the deceased had passed away and it was only in August 2010 when Chee paid the premium of $109,650 to the government that he became entitled to build a village house on the land at his own cost.

21. The judge found it obvious that from 2005 onwards the relationships between the deceased and three of his children, Chee, Chiu and Man Wah, were not close and the deceased did not feel sufficient care and love from these children.  After their relocation in Hong Kong in 2005, the deceased felt much closer to Lan and wanted to provide for Lan as he did not trust Man Yi financially[10].  The judge found that on the other hand, the deceased did not find it necessary to provide for Chee, Chiu and Man Wah any further, especially given the 2005 Application[11].

22. In 2008, the deceased was admitted to the Prince Margaret Hospital three times.  His last admission was on 13 November, due to chest infection and deterioration of his renal function.  The medical officer in charge of the deceased was Dr Ho Chi Pang (“Dr Ho”).  Since his admission, the deceased appeared to Dr Ho alert, calm and co-operative and he spoke relevantly and coherently.  He was able to feed himself and tolerated the non-invasive positive pressure ventilation machine well.  Dr Ho added that the condition of the deceased remained relatively stable until 25 November.  From then onwards, his condition deteriorated and his mental dullness increased.  On 27 November, he passed away due to end stage renal failure and chest infection.

23. The 2008 Will was made on 19 November and it came about in this manner, according to the evidence of Man Yi, the attesting witnesses being a solicitor Leung Suk Chong (“Ms Leung”) and her clerk Lai Ho Yee Betty (“Betty”), and Dr Ho.

24. On 15 November, Dr Ho reported to Man Yi that the deceased was expected to live for no more than two weeks.  Although Man Yi did not tell the deceased about this, he told her he felt his physical condition was very different from his previous experience and asked her to look for a lawyer as he wanted to make a will.  Man Yi called a friend Phobe Cheung (“Phobe”) who was a secretary to a barrister and Phobe contacted Betty.  Man Yi related to Phobe how the deceased wished to distribute his estate and Phobe then liaised with Betty by several telephone calls and an email dated 17 November.  Betty did not take instructions from Man Yi or Lan directly even though she was acquainted with them.  In accordance with the instructions she finalised with Phobe, Betty prepared a draft will in Chinese.  She then contacted Lan to fix a time to meet the deceased in the presence of a medical officer, as she was asked by Ms Leung to make sure that a medical officer would be present to confirm the mental capacity of the deceased.

25. The judge accepted the evidence of Ms Leung and Betty regarding the execution of the will[12].  On the morning of 19 November, they went to the hospital with the draft will.  At that time Ms Leung had been practising for over ten years and was a partner of Messrs Shea & Co.  After identifying herself to the deceased, she had a brief conversation with him and the deceased was able to tell her clearly his full name, the names of Lan and Man Yi who were standing at the bedside and their relationship with him, the name of the hospital where he was, that he had asked his daughter to find a lawyer to make a will for him and that he wanted to make his last will there and then.  He was able to tell Ms Leung the details of his properties precisely without any prompting.  Ms Leung then asked him what he wanted to do by his last will and the deceased told her all his intended dispositions.  Ms Leung checked them against the draft will and was convinced that his true testamentary intention was reflected in the draft will.

26. Not knowing how many children and grandchildren the deceased had, Ms Leung asked the deceased whether he had any other properties or other beneficiaries he would want to include in his last will and the deceased replied in the negative.  Given the deceased’s direct instructions, Ms Leung accepted the accuracy of the draft will and so she read to him the draft will sentence by sentence.  Then the deceased took a few minutes to read the draft will himself.  He confirmed that the contents of the draft will were correct and in accordance with his wishes.

27. Dr Ho arrived a short while later and carried out a routine medical check on the deceased by way of general conversation.  The deceased could tell his name to Dr Ho and identify Lan and Man Yi correctly.  He knew the name of the hospital where he was staying and the time up to the hour.  He could follow Dr Ho’s commands to move his body parts and say correctly what he had for breakfast that morning.  Dr Ho also checked all the medical records of the deceased.  He concluded there was no impairment whatever of the mind of the deceased and certified that the deceased was fully conscious, mentally sound and stable to arrange and decide on his financial affairs on 19 November.

28. Ms Leung then read over the draft will to the deceased again and passed it to the deceased to read for a second time.  After reading for about two minutes, the deceased signed the draft will and Ms Leung and Betty appended their signatures as attesting witnesses.

29. The 2008 Will revoked all previous wills and dispositions.  Lan was appointed the executor.  The ground floor and first floor of the deceased’s house in Ma Wan were bequeathed to Lan for his residence or for the generation of rental income for him and, upon Lan’s death, his children would inherit these landed properties from Lan and enjoy the use of the same.  The balance of the Joint Account was bequeathed to Lan.  After payment of the deceased’s funeral expenses from an account at HSBC in the deceased’s sole name (“the Account”), the remaining balance in the Account was bequeathed to Lan’s sister Wan Yin.  As regards the deceased’s residual estate and in case of any other property, Lan was authorised to realise such property and apply the proceeds first to discharge the debts of the deceased, and next to pay the expenses for the administration of the estate, and the remainder was bequeathed to Lan.

30. According to the schedule of assets of the deceased signed by Lan dated 12 January 2009, the deceased had the following assets as at the date of his death: the ground floor and first floor of his house; credit balance of $77,395.42 in the Joint Account; and credit balance of $2,334.64 in the Account.  The judge found that the deceased intended to make a gift to Wan Yin but had forgotten that the credit balance in the Account could not possibly cover his funeral expenses[13], so the disposition to Wan Yin in the 2008 Will was meaningless in reality.

31. Ms Leung could not remember if the deceased wore his spectacles, nor could she tell if he had his hearing aid.  Nevertheless it did not appear to her the deceased had any difficulty when he read the will and she did not notice he had any hearing problems.  Neither Ms Leung nor Dr Ho had experienced any difficulty in their communication with the deceased despite his wearing a mask.

32. On the issue of testamentary capacity, the judge held that with the acceptance of the evidence of Ms Leung, Dr Ho, Dr Cheung Kin Hung (“Dr Cheung”, who gave expert evidence for the plaintiff on the deceased’s testamentary capacity) and the medical evidence relating to the deceased which was not contradicted, he was left with no doubt that the deceased had the requisite testamentary capacity[14].

33. Ms Leung did not know that the deceased had made two previous wills.  Nor did Dr Ho know about the previous wills.  So neither of them had followed the “golden rule” of Templeman J in Kenward v Adams (1975) The Times, 29 November 1975 in that they did not take the precaution of considering the earlier wills and discussing them with the deceased.  The judge accepted it would have been better for Ms Leung and/or Dr Ho to have discussed the 2004 Will with the deceased and asked for his explanation for the change.  But given the overall assessment of his capacity by Ms Leung and Dr Ho and in the absence of any evidence of intellectual and memory impairments, the judge agreed with Dr Cheung that the deceased could be considered mentally competent[15].

34. The fact that Dr Ho did not carry out a “task-specific mental capacity assessment” on the deceased did not cause the judge any concern when all the relevant evidence was considered in the round.  Nor did the allegation that Ms Leung did not fulfil all of the requirements in Banks v Goodfellow (1870) LR 5 QB 549 at 565 (in that she did not enquire with the deceased whether he knew any persons who might have a reasonable claim to be beneficiaries and did not check if he understood the impact of the distribution of the assets)[16].  The judge had regard to Ms Leung’s evidence that the deceased replied to her he had no other property to be disposed of and there were no other beneficiaries to be included, and inferred from that the deceased did go through the thinking process before making the reply and hence did have the requisite knowledge and understanding[17].

35. As for the deceased’s mistake about the amount of credit balance in the Account at the time he made the 2008 Will, the judge was not satisfied that was adequate evidence of memory impairment[18].  This was just an isolated incident of a memory slip.  The deceased had demonstrated his sound memory capacity by the fact that he was able to give Ms Leung detailed instructions relating to the 2008 Will[19].

36. Turning to the issue of rationality for the purpose of assessing the deceased’s testamentary capacity, the judge was convinced the deceased had his own reasons to make Lan effectively the sole beneficiary under the 2008 Will and did not think the provision relating to the Account rendered the will irrational[20].

37. For the issue of knowledge and approval, the judge was of the view that the second rule of Barry v Butlin (1838) 2 Moo PC 480[21] (“the Second Rule”) did not apply since the deceased gave instructions about his testamentary dispositions to Ms Leung directly[22].  In any event, even if the Second Rule should apply, after subjecting the evidence of the plaintiff (in particular, the evidence of Ms Leung) to a “vigilant and jealous examination”, the judge found it so “overwhelming and persuasive” that all alleged suspicions about the circumstances surrounding the 2008 Will are dispelled[23].  Indeed, the judge did not find there were any suspicious circumstances at all[24].

This appeal

38. Four broad issues were raised by Mr Miu on behalf of Chee in this appeal.

39. First, he contended that the judge had erred in law in holding that the Second Rule did not apply and this clouded his approach to the whole case.

40. Second, on the premise that the Second Rule did apply and that the judge should have scrutinised all the evidence in support of the 2008 Will with vigilance and jealousy, he contended that the judge had accepted the evidence of the plaintiff’s witnesses readily and had failed to have regard to the “many glaring inconsistencies” in the evidence of Man Yi and Lan, that the judge was unduly critical of the evidence of Chee and made a couple of factual mistakes about Chee’s evidence, and that he had failed to consider whether there was sufficient evidence (other than the uncorroborated evidence of Man Yi and Lan) that the deceased felt his days were numbered or that he had been neglected by his other children.

41. Third, the judge was wrong to find on the evidence the deceased had testamentary capacity.

42. Fourth, on the basis that the Second Rule applied, the judge was wrong to hold that there were no suspicious circumstances that called reasonably for investigation of the validity of the 2008 Will and was wrong to rule that costs of the action should follow the event.

43. These issues will be considered in the above order.

If the Second Rule should apply

44. In holding that the Second Rule did not apply, the judge took the view the mere fact that Ms Leung was instructed through the arrangement of Man Yi for the preparation of the 2008 Will should not excite any suspicion of the court, given that Ms Leung had subsequently received direct instructions from the deceased by his deathbed, and there was absent any doubt about the professional integrity of Ms Leung and any other suspicious circumstances in this regard[25].

45. We are inclined to think that as Man Yi was instrumental in obtaining a will in which her son is the major beneficiary, that is a matter which should excite the suspicion of the court for the Second Rule to apply.  Ms Leung was engaged through the endeavours of Man Yi.  The draft will was prepared on the instructions relayed by Man Yi to Phobe who in turn liaised with the draftsman Betty.  That is a circumstance relevant to the preparation and execution of the will and is sufficient to raise in the mind of the court a suspicion that the deceased did not know and approve the contents of the will such that the propounder of the will must prove affirmatively the deceased did have knowledge and approval and the entire evidence – including matters and circumstances not attending to the preparation and execution of the will – must be considered with the appropriate degree of vigilance and jealousy.

46. Mr Chong repeated his submission on behalf of the plaintiff before the judge that since the subsequent instructions given by the deceased to Ms Leung accorded with the draft will and Ms Leung was convinced the draft will was reflective of the true testamentary intention of the deceased, the Second Rule should not apply.  He also submitted that the Second Rule should not apply as the draft will was not written or prepared by a party who took a benefit under it or by someone who has a close relationship with the beneficiary.

47. We do not accept his submissions.  What happened subsequently, such as the direct instructions taken by Ms Leung, and the absence of any doubt about her professional integrity, could go a long way to dispel suspicion, as evidence of the deceased giving instructions for his will, or of the will being read over to him or by him, remains the most satisfactory evidence to establish his knowledge and approval (Barry v Butlin, at 485, per Parke B[26]).  That does not mean the suspicion of the court should not be excited in the first place.  And the fact that the draft will was not written or prepared by Man Yi personally should make no difference, when the draft was prepared in accordance with the instructions relayed by her.

48. Two of the cases cited by Mr Miu would serve to illustrate the correct application of the Second Rule.

49. In Re Yip Keung, HCAP 15/2004, 19 December 2007, the will was prepared by a barrister friend of the sole beneficiary and executor and the drafter took instructions from the deceased directly in the presence of the beneficiary who also supplied information to the drafter.  There was no question of doubt about the professional integrity of the drafter, who interpreted line by line the English will to the deceased on a subsequent occasion before he executed it.  It was accepted by the beneficiary, and rightly so as held by the court, that the case should fall within the Second Rule so that he was obliged to prove affirmatively the deceased knew and approved of the contents of the will, and that the degree of vigilance and jealousy to be exercised should be commensurate with the gravity of the circumstances which excite the suspicion (at §70).

50. In Tao Shen Jong v Yung Sau Lan Shirley, HCAP 10/2010, 21 March 2012, the will was prepared by a solicitor in Hong Kong who had a long distance telephone conference with the testator in California for half an hour.  The testator gave instructions to the solicitor directly based on a draft will in Chinese.  An American attorney took no part in the drafting but had advised the testator on his Chinese draft will.  The attorney was located by the plaintiff, who is the testator’s younger son by an earlier marriage, and the major beneficiary and sole executor.  The defendant, who is the widow, was disinherited.  The plaintiff was present in two of the meetings the attorney had with the testator and he was the interface of written communications in English between the testator and his lawyers.  The earlier handwritten draft in Chinese was in the testator’s handwriting but legal expressions were used and the testator was not conversant with such expressions.  Notwithstanding that the Hong Kong solicitor had later taken instructions directly from the testator in the telephone conference, L Chan J required the plaintiff to prove positively the testator knew and approved of the will (at §§123, 163).

51. The judge had erred in law in holding that the Second Rule should have no application in the circumstances of this case.

If the judge had erred in holding there was knowledge and approval

52. Mr Miu mounted a wide ranging attack on virtually all aspects of the evidence on which the judge had made findings, following from the premise that the entire evidence should be considered with vigilance and jealousy with the application of the Second Rule.

53. But there is a limit as to how far the court can go in applying the Second Rule.  As Peter Gibson LJ had stated in Fuller v Strum [2002] 1 WLR 1097 at 1107, suspicion may be roused in varying degrees depending on the circumstances and what is needed to dispel the suspicion will vary accordingly.  Nor does it follow that unless each and every relevant or “suspicious” circumstance has been satisfactorily explained, the court can never be satisfied that the testator knew and approved of the contents of the will.  As stated by A Cheung J (as he then was) in Re Yip Keung, relevant or “suspicious” circumstances are pointers, they are not the end in themselves.  It is a question of weight to be attached to all the relevant circumstances in determining where the balance of probabilities lies in terms of the issue of knowledge and approval (at §§74 and 73).

54. Mr Miu faced an uphill battle in challenging the judge’s finding of primary facts and matters of weight to be attached to the evidence which are solely the province of the trial judge.  It is well established that the appeal court can only interfere with primary findings of fact if it is satisfied that the trial judge’s conclusion on the facts is plainly wrong (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §42), or that no reasonable jury could have reached the judge’s conclusion (Sharp v Adam [2006] EWCA Civ 449 at §95, said in the context of an appeal against a finding on testamentary capacity).  If we are not so satisfied, we must defer to the judge’s conclusion even if we were in some doubt as to its correctness.  The “plainly wrong” test is applicable unless the finding of fact is based purely on inferences, or otherwise has nothing to do with the witnesses’ demeanour or the trial judge’s having received the evidence at first hand (Pang Ketian Sally v Tam Yuk Hung Annie, CACV 147/2013, 25 April 2014, at §31).

55. The judge accepted the evidence of Ms Leung and found her an “impressive” witness[27].  On her evidence (that the deceased gave her verbal instructions of his testamentary dispositions and they accorded with the draft will prepared by Betty, that she read over the 2008 Will to him twice and let him read it and he confirmed to her his approval of the contents), the judge had no doubt that the deceased knew and approved the contents of the 2008 Will[28].

56. Mr Miu sought to attack that finding by contrasting what Ms Leung did with what other lawyers did in Tao Shen Jong and Hawes v Burgess [2013] EWCA Civ 74.  In Tao Shen Jong, the American attorney had a meeting with the testator for 1½ hours in which the testator talked about his family, and the Hong Kong solicitor asked to speak to the testator directly when she found some unusual provisions in the draft will supplied to her by the American attorney.  The telephone conference the Hong Kong solicitor had with the testator was for half an hour.  In Hawes v Burgess, the solicitor took instructions from the testatrix at a meeting in his office and on a subsequent occasion read the draft will to her and explained the meaning of it before she executed the will.

57. Mr Miu pointed out that in contrast, Ms Leung spent only three to four minutes to ascertain the deceased’s mental conditions and another ten minutes or so to re-confirm instructions by checking against the draft will prepared by Betty.  She did not find out how many children and grandchildren the deceased had, or that he had made previous wills.  Counsel submitted that the provision in the 2008 Will purporting to give a life interest[29] of two landed properties to the plaintiff was unusual and was in conflict with the initial instructions of absolute gift as relayed by Man Yi.  Mr Miu argued that the provision giving the balance of the Account to Wan Yin after funeral expenses were paid was also unusual and Ms Leung had failed to discuss with the deceased if he should not just leave a specific amount of money to Wan Yin as his intention of making a gift to her was for her to buy a bracelet, according to the email of Phobe to Betty dated 17 November 2008.

58. Mr Miu submitted what Ms Leung did fell far short of what the American attorney and Hong Kong solicitor did in Tao Shen Jong,and less than what the solicitor did in Hawes v Burgess.

59. We do not think it appropriate to compare and contrast what Ms Leung did with other legal professionals did in totally different situations.  The testator in Tao Shen Jong had a considerable estate.  The deceased’s assets comprised just two landed properties, and the balances in the Joint Account and the Account.  The 2008 Will was just two pages with six clauses, whereas the will in Hawes v Burgess contained no less than 22 clauses.  In the particular circumstances, the judge was entitled to infer from the deceased’s negative answer to Ms Leung’s question whether he had any other properties or other beneficiaries that the deceased did go through the thinking process before making the reply and hence did have the requisite knowledge and understanding[30].  As for the provision of giving the two properties to the plaintiff to be used as his residence during his lifetime or for him to collect rent, the judge was entitled to accept the evidence of Betty that this was based on the instructions given to her by Phobe who in turn obtained them from Man Yi[31].

60. Mr Miu pointed to a conflict of evidence between Ms Leung and Betty on the manner in which Ms Leung had allegedly read the Will over to the deceased and obtained his confirmation.  According to Ms Leung, she read over the draft will to him sentence by sentence and he confirmed after each sentence[32].  Betty however said Ms Leung read the whole thing to the deceased before she asked his confirmation[33].  This point was made in Mr Miu’s closing submission at trial[34], so the judge would have been aware of the conflict.  The judge did not deal with the conflict and would appear to have just accepted Ms Leung’s evidence on this[35].  We do not think this was sufficient to cast doubt on the judge’s claim that he had subjected the evidence of Ms Leung to a vigilant and jealous examination[36].

61. Mr Miu relied on the evidence of Chee, which was not challenged, that the deceased’s reading glasses and hearing aid were not placed by his bedside in hospital.  Ms Leung gave evidence that the deceased did not appear to have any difficulties reading the draft will and she did not have any difficulties in communicating with him. Dr Ho testified he did not have any difficulty in his communication with the deceased.  The judge was entitled to find on their evidence that the deceased’s presbyopia and hearing problem had not caused him any significant difficulties in his reading and understanding of the draft will[37].

62. The judge preferred the evidence of Man Yi to that of Chee and Chiu wherever they are in conflict save for her evidence relating to the Plan.  He remarked that Man Yi struck him as a “straightforward and truthful witness”[38].  He found Lan on the whole a “sincere and credible witness”[39] and that the evidence of and adduced for Lan was “overwhelming” and “very convincing”, despite “the criticisms of Mr Miu about certain minor inaccuracies”[40].

63. Before us, Mr Miu submitted that the judge should have found that Man Yi had deliberately lied, having rejected her evidence the Plan did not exist.  The judge reasoned that Man Yi was not involved in the discussion of the Plan, and even if the mother had later disclosed the Plan to Man Yi and Chiu in the UK in about 1992, the mother might not have presented the Plan as “formal and binding”.  On this reasoning, the judge declined to doubt Man Yi’s credibility merely because she had denied the existence of the Plan[41].  We do not agree with Mr Miu’s criticism of this reasoning.  Nor do we think it material it was never the defendant’s case that the Plan was “formal and binding”.

64. Mr Miu repeated to us the inconsistencies in the evidence of Man Yi and Lan in his closing submission at trial[42].  We see no reason to disagree with the judge they are “minor inaccuracies”, hardly sufficient for us to substitute a finding that the evidence of Lan and Man Yi must be suspect.

65. Likewise, the complaint that the judge was extremely critical of Chee and that he had made two factual mistakes regarding Chee’s evidence is immaterial.  What mattered was the judge’s finding that the deceased did not feel sufficient care and love from his other three children and did not find it necessary to provide for them any further[43].

66. Mr Miu sought to cast doubt on the plaintiff’s case by repeating his closing submission at trial that the plaintiff’s testimony in re-examination the deceased was told by a doctor in about 2005 he only had a few months to live was different from his witness statement that the deceased’s health “began to deteriorate” at around that time[44].  The judge would have taken that into account.  Nonetheless, he arrived at the conclusion on the totality of the evidence that “the overall picture is quite clear”[45].  He was entitled to find that the deceased was diagnosed he could not live for more than six months[46] in light of all the evidence: the deceased’s return to Hong Kong in January 2005 was meant to be the last one and he did not return to the UK afterwards; Lan and Man Yi made plans to settle in Hong Kong to look after the deceased; and the 2005 Gift was made to Man Yi in return for her promise to take care of him in the final stage of his life.

67. Mr Miu again brought up the submission he made at the closing of the trial that the deceased loved all his grandchildren as conceded by Lan, that Chiu had made one visit to the deceased in August 2006 with his children, that Man Wah’s two daughters came back to visit the deceased once in 2007, and it was understandable that Man Wah and her husband were busy people and could not visit the deceased in the last three years of his life.  He repeated his submission at trial that the deceased had an active social life with his friends and neighbours and was not a lonely person longing for a visit from his children[47].  The judge rejected these submissions and found it “obvious” that the relationships between the deceased and his three other children were not close from 2005 onwards and it was “totally understandable” that the deceased should complain to Lan about being neglected by his other children[48].

68. We have no reason to think that the judge had not considered the whole of the evidence with the appropriate degree of vigilance and jealousy.  There is no valid basis to interfere with his conclusion that all the alleged suspicions about the 2008 Will are dispelled on an “overwhelming and persuasive” basis, or with his “firm view” that the 2008 Will represents the true testamentary intentions of the deceased and Lan has sufficiently proved the righteousness of the transaction[49].

If the judge had erred in holding there was testamentary capacity

69. The judge held there was not a shred of medical evidence that the deceased had suffered any mental incapacity caused by his illnesses and that the evidence of Ms Leung, Dr Ho and Dr Cheung is more than enough to establish on a balance of probabilities that the deceased was of testamentary capacity when he executed the 2008 Will on 19 November 2008[50].

70. Mr Miu sought to challenge this finding on a number of grounds, and practically all of them were advanced before the judge.  He faced the same difficulty as mentioned earlier for this court to interfere with the judge’s findings of fact.

71. First, he repeated his earlier submission that Ms Leung had spent only ten minutes or so going through the draft will with the deceased.  He again relied on her failure to fulfil all of the requirements in Banks v Goodfellow in that she did not enquire with the deceased whether he knew any persons who might have a reasonable claim to be beneficiaries and did not check if he understood the impact of the distribution of the assets.  He also pointed to the error about the balance in the Account which made the disposition to Wan Yin meaningless, and submitted that the judge should have found the deceased’s memory function was defective.  In addition, there was confusion as to how Phobe obtained further instructions from Man Yi to pass on to Betty.

72. All these matters had been considered by the judge.  He was entitled to come to the view that when all the relevant evidence is considered in the round, the allegation that Ms Leung did not fulfil all of the requirements in Banks v Goodfellow should not cause him concern[51].  He was not satisfied there was adequate evidence of memory impairment, notwithstanding the deceased’s mistake about the balance in the Account.  It is not necessary that the testator has to know the value of his property with a high degree of precision.  Further, the deceased had demonstrated his sound memory capacity by his being able to give to Ms Leung detailed instructions relating to the 2008 Will.  The single isolated incident of a memory slip could not amount to evidence of significant memory impairment vitiating the mental capacity of the deceased[52].  In view of Ms Leung’s evidence that she had taken instructions from the deceased directly, the judge did not find it necessary to resolve the confusion in the evidence of Man Yi and Betty as to how and from whom further instructions were obtained for the preparation of the will[53].

73. Next, Mr Miu repeated his submissions of irrationality.  He argued that even if the deceased was concerned Lan should have a place to live and not be evicted by Chee, the deceased could have given just one of the two flats to Lan and made a gift of the other flat to all his other grandchildren[54].  He cited Sharp v Adam at §§63 to 65 to make the point that even if the deceased’s giving Lan a large share of the estate could be justified, giving nothing at all to the other eight grandchildren could not.  He contended that the judge erred in rejecting his submission if the court accepted the existence of the Plan, that would show the deceased was a traditional Chinese man and it would be out of character for him to give the whole of his estate to grandchildren who do not carry his surname[55].

74. The judge had fully considered these submissions and rejected them.  He was satisfied the 2008 Will is not in any way irrational and the explanation for the change of testamentary dispositions from the 2004 Will is “not hard to fathom on the evidence”[56].  He refused to take the simplistic approach the deceased would have disposed of his estate in accordance with the thinking of a traditional Chinese man.  He was convinced the deceased had his own reasons to make Lan effectively the sole beneficiary of his estate[57].  The court is not concerned about the fairness or reasonableness of the 2008 Will.  Sharp v Adam is a case decided on its own facts.

75. Mr Miu again complained that the judge was heavily influenced by the 2005 Application which only gave Chee a chance to obtain a financial advantage[58].  The judge was fully aware of this.  He found Chee had more than enough on his plate and it was not unreasonable that the deceased did not find it necessary to provide for Chee and his family[59].

76. We see no basis at all to interfere with the judge’s finding that the deceased was of testamentary capacity when he executed the 2008 Will on 19 November 2008.

If the judge had erred in his costs order

77. The applicable principles are as stated in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800.  The starting point and general rule where opposition to a will is unsuccessful is that costs would follow the event.  The general rule is subject to two exceptions.  The first exception is where the conduct of the testator or the residual beneficiary was the sole or dominant cause of the litigation and the appropriate costs order in this situation is for the costs to come out of the estate.  The second exception is where circumstances lead reasonably to an investigation of the will’s validity and in such cases, there would be no order as to costs.  However, even if a case fell prima facie within one of the exceptions, if opposition to the will goes beyond putting the proponent to strict proof of its validity and involved fundamentally hostile litigation, such as where the opposing party took it upon himself to establish a positive case of forgery, fraud or undue influence, the general rule is likely to apply, as implicitly recognised in Order 62 rule 6(1)(c) of the Rules of the High Court.  Lastly, the operation of the two exceptions is subject to a further qualification that the courts do not approve of ill-considered and precipitous decision to litigate in opposition to a will and the opponents must have taken all proper steps to inform themselves as to the facts of the case before undertaking the proceedings if they are to take themselves out of the general rule of costs following the event.

78. In the Decision, the judge held that the present case does not fall within the first[60] or second exception[61].  That being his conclusion, strictly speaking there was no need to consider whether the action took the form of hostile litigation.  The judge took the view it was[62].  Further, even if any of the two exceptions apply, there was no evidence that Chee had ever taken any proper steps to inform himself as to the facts of the case and to dispel his own suspicions.  The judge was of the view his opposition was unreasonable and devoid of merit[63].  He declined to vary the costs order nisi that costs should follow the event in accordance with the general rule.

79. Mr Miu submitted before us that one of the two exceptions should apply, with the consequence that costs should come out of the estate or there should be no order as to costs.  We firmly reject his submission that this case falls within the first exception, for the reasons given by the judge.  As we have held that the Second Rule should apply to this case, we are inclined to think that the circumstances here do lead reasonably to an investigation of the validity of the 2008 Will.  We do not accept Mr Chong’s submission to the contrary.

80. The question here is whether the opposition to the 2008 Will involved fundamentally hostile litigation and whether Chee had taken proper steps to inform himself as to the facts of the case before undertaking the proceedings.

81. Mr Miu referred to the costs orders nisi in Re Yip Keung (at §179, the judge holding that the case came within the first exception and the defendants had not crossed the line in putting the plaintiff to strict proof in a trial lasting eight days and ordered the costs of the defendants be paid out of the estate on a common fund basis) and Tao Shen Jong (at §185, the judge ordered there would be no order as to costs as the defendant did have some reasonable grounds to oppose the will).  We do not think it helpful to refer to the costs orders made in these cases as the factual situations and the conduct of the proceedings could not be said to be comparable with the present case.

82. Chee did not advance a positive case of undue influence despite a vague allegation made in the defence filed by him when he was acting in person.  Nevertheless, the judge came to the view that Chee handled this action as a hostile litigation and said this at §38 of the Decision:

“[Chee’s] vigorous attempt to show the alleged irrationality of the 2008 Will with his wide ranging allegations formed the major part of his opposition. Eventually he was in vain. Chee did far more than putting Lan to strict proof of the validity of the 2008 Will and he conducted his opposition in such a manner without any difference from all other hostile litigations.”

83. Elsewhere, the judge described this as “bitter litigation”[64].

84. Mr Miu took issue with the judge’s assessment but we see no proper ground to differ from the judge who spoke from his own involvement with the case in the five-day trial.  We agree with Mr Chong that the defendant had called positive evidence, such as the evidence of his own expert Dr Chung See Yuen, in an attempt to destroy the plaintiff’s case and was seeking to propound the 2004 Will[65].  The judge was right in holding that Chee did far more than putting Lan to strict proof of the 2008 Will.

85. We also see no basis to differ from the judge’s finding that there was no evidence Chee had taken any proper steps to inform himself of the facts of the case and to dispel his own suspicions.  The judge said this at §39 of the Decision:

“In my view, Chee was just too disappointed at his absolute disinheritance under the 2008 Will and was just too keen on defeating the same. He lost sight of the 2005 Application and firmly concluded that the dispositions in the 2008 Will were irrational. He failed to take an objective stance to assess its validity. His reliance on the Plan was misplaced. His opposition was not supported by any cogent evidence and not based on any valid ground. He made the ill-considered and precipitous decision to oppose the 2008 Will.”

86. That is a view the judge was fully entitled to reach.

87. In light of our ruling that the circumstances here do lead reasonably to an investigation of the validity of the 2008 Will, we think it just and fair that as the plaintiff would have to incur some costs to prove his case positively on knowledge and approval and to dispel suspicion, both parties should bear their own costs to the extent of such an investigation.  So the net result would be no order as to costs for that portion of the proceedings attributable to the necessary investigation, and the defendant should pay the plaintiff the costs of the remainder of the proceedings as he had crossed the line in putting the plaintiff to strict proof and conducted a hostile litigation.  We would apportion that part of the costs attributable to the necessary investigation at one-third of the total costs of the proceedings.  We therefore set aside the judge’s order that costs should follow the event, and substitute it with an order that the defendant should pay the plaintiff two-thirds of the costs below.

Costs of this appeal

88. After the hearing was completed on 31 March 2015, in which we reserved our decision on the appeal as to the costs below and on the costs of this appeal, the defendant’s solicitors wrote to the court on 8 April 2015 enclosing their letter to the plaintiff’s solicitors dated 24 January 2015 marked “without prejudice save as to costs”.

89. The Calderbank letter was written at a time when the defendant had applied to vary the costs order nisi of the trial and the parties were waiting for a decision from the judge, which was given on 9 March 2015.  In that letter, the defendant offered to withdraw his appeal against the Judgment upon the plaintiff agreeing to vary the costs order nisi of the trial to no order as to costs.

90. The plaintiff apparently declined to accept the offer.

91. The outcome of our judgment on the appeal as to the costs below is that the defendant should pay the plaintiff two-thirds of the costs of the action.  The plaintiff has obtained a better result than what was offered in the Calderbank letter, which was no order as to costs.  We decline to take into account the offer in the Calderbank letter in making an order of the costs of this appeal.

92. The plaintiff has succeeded in upholding the Judgment but not the Decision.  Taking into account the work done and the time spent in the argument on the appeal on costs, we make an order nisi that the plaintiff should have 75% of the costs of this appeal.