LI CHI LOY v. LI LAI LAN CANDIAC AND OTHERS

HCAP4/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2003

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Dates of Hearing : 10–11, 14–18, 21–24 January and 16 April 2008

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J U D G M E N T

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A.      THE COMPETING WILLS

1. Mr Lee Wing Nin (“the Deceased”) made a will dated 8 March 1996 (“the 1996 Will”), leaving all his estate to the 1^st defendant, his wife and 2^nd to 4^th defendants, his daughters.  Five years later, he made another will dated 10 December 2001 (“the 2001 Will”), leaving all his estate to the plaintiff, his eldest son.  He died on 9 January 2002.  Disputes between the parties as to their entitlement to the Deceased’s estate had since arisen, which eventually resulted in the present action.

2. The protagonists in these proceedings are the plaintiff and the 1^st to 3^rd defendants (collectively “the defendants” below).  The 4^th defendant, who lives in Canada on her own, was served with a concurrent writ outside jurisdiction.  But she did not file any acknowledgement of service or take part in these proceedings.

3. The plaintiff sought to pronounce that the 1996 Will is invalid or has been revoked and superseded by the 2001 Will and to propound the 2001 Will in solemn form.  The defendants sought to pronounce against the 2001 Will and to propound the 1996 Will in solemn form.

B.      THE BACKGROUND

4. The background leading to this action is outlined below.

5. The Deceased was born in the Mainland in 1918.  He married a kit fat wife and had four children, including the plaintiff who was born in the early 1930s.

6. The Deceased later came to Hong Kong and in 1955 married the 2^nd defendant.  They had two children, the 1^st defendant and Mr Lee Shueng Hang (“Sheung Hang”), born in 1961 and 1965 respectively.

7. The Deceased had two other daughters, the 3^rd and 4^th defendants, with a Madam Su then living in Taiwan.  The 3^rd defendant was born in 1979.  The Deceased brought her to Hong Kong soon thereafter.

8. The plaintiff came to settle in Hong Kong in 1980.  Years later, his wife and family including sons Mr Lee Chun Nin (“Chun Nin”) and Mr Lee Chun Wah (“Chun Wah”) came as well.

9. In 1990, the Deceased emigrated to Canada with the 2^nd and 3^rd defendants and Sheung Hang.  The 1^st defendant and her family remained in Hong Kong.

10. In 1992, the Deceased returned to Hong Kong alone.  Apparently, he co-habited with a Ms Chan thereafter.  Since his return, he had then been living here for most of the time, although he went back to the Mainland for short trips. 

11. In March 1996, while staying with his family in Canada, the Deceased executed the 1996 Will, leaving all his estate to the 1^st to 4^th defendants.

12. In March 1999, the Deceased was diagnosed with cancer.  Radiotherapy was conducted.  Since June 1999, chemotherapy was carried out intermittently.  Unfortunately, the treatments did not yield a favourable result.  Eventually upon the Deceased’s refusal, chemotherapy stopped in October 2000.

13. In May and October 2001, the Deceased returned to Canada to dispose of some of his properties there.  As will be seen in a moment, the disposal of those properties has an important bearing on the present case.

14. On 24 November 2001, the Deceased was hospitalised in Queen Elizabeth Hospital (“QEH”) because of deterioration of his general condition.  No further meaningful treatment could be done.  On 4 December 2001, the Deceased was transferred to Nam Long Hospital (“NLH”) for continuing institutional and symptomatic care.  But he left NLH two days later on 6 December with the plaintiff and his son (Chun Nin on the plaintiff’s case or Chun Wah on the defendants’ case).  They then brought the Deceased to Shenzhen.  In that evening, the Deceased was admitted to Hung Wui Hospital (“HWH”).  On the following day, he changed to Lo Wu Hospital (“LWH”).  On 8 December 2001, the plaintiff and Chun Nin took him to Guangzhou by taxi and then to Hunan by an overnight train.  They arrived at Hangyang City in Hunan in the morning on 9 December 2001.  The Deceased was then admitted to Nam Wah University Affiliated No.1 Hospital (“NWH”) there.

15. It is the plaintiff’s case that after his admission to NWH, the Deceased told the plaintiff that he wanted to make a will leaving all his estate to the plaintiff as his natural and eldest son.  On the following day, he executed the 2001 Will, which was in Chinese.  Included in his estate is a residential property in Tin Shui Wai, Hong Kong (“the Tin Shui Wai Property”).  The 2001 Will was, on its face, written by陳政軍, a notary officer, on the Deceased’s behalf.  It was signed by another notary officer唐立清and a witness surnamed雷[1], who was on the plaintiff’s case the lawyer engaged to deal with the 2001 Will.

16. On 9 January 2002, the Deceased died in the Mainland.

17. The 1^st to 3^rd defendants complained that since his departure to the Mainland, the plaintiff had kept secret the whereabouts of the Deceased from them.  So they had been unable to contact him up to the time of his death.

C.      VALIDITY OF THE 1996 WILL

18. I will first dispose of the question whether the 1996 Will is valid, which is straightforward.

19. The defendants bear the burden of proving the 1996 Will since they seek to pronounce it in solemn form.  In this regard, they relied on the affidavits of the two subscribing witnesses to the 1996 Will, Mr Alexander Ning and Ms Laurie Yu, dated 12 March 2002 and filed on 13 December 2004, which were admitted without calling them.  Their evidence is this.  Before its execution, Mr Ning interpreted the 1996 Will, which was written in English, to the Deceased in Cantonese.  The Deceased confirmed that he perfectly understood its contents and he had full knowledge of and had approved of the same.  The Deceased then signed his name on the 1996 Will in the presence of Mr Ning and Ms Yu and whereupon they attested and subscribed their signatures to it in his presence.

20. The thrust of the plaintiff’s pleaded case is that because of the subsequent 2001 Will, the 1996 Will is rendered invalid or has been revoked and superseded.  He did not otherwise plead any separate ground to dispute the validity of the 1996 Will.  He understandably did not challenge the evidence of Mr Ning and Ms Yu.  Nor indeed is there any evidence capable of contradicting them.

21. In the circumstances, I accept the evidence of the subscribing witnesses and find that, subject to the validity or otherwise of the 2001 Will, the 1996 Will is valid.

22. This brings me to the question if the 2001 Will is valid.

D.      THE SUBSTANTIVE ISSUES ON THE VALIDITY OF THE 2001 WILL

23. Disputing the validity of the 2001 Will, the defendants first pleaded that the Deceased’s signature on the 2001 Will was forged.  They next pleaded that the 2001 Will was not duly executed.  Even if there was due execution, the Deceased did not have the testamentary capacity, he did not know or approve of its contents and he executed it under undue influence. 

24. At the commencement of the trial, the defendants dropped the forgery plea for the simple reason that even their own handwriting expert concluded that the signature on the 2001 Will was likely the Deceased’s.  They accepted that his signature was genuine.  Mr Lo, counsel for the defendants, also conceded that the 2001 Will was duly executed under section 24 of the Wills Ordinance, Cap. 30.  Although in his closing submissions, Mr Lo tried to re-open this question, in the end he did not persist and re-iterated that the defendants accepted that the 2001 Will was duly executed.  Due execution is thus no longer an issue.

25. The substantive issues that remain for my determination are :

(1)     Did the Deceased have the testamentary capacity?

(2)     Did the Deceased know and approve the contents of the 2001 Will?

(3)     Was the Deceased under undue influence when he executed the 2001 Will?

E.    THE GENERAL APPROACH ON THE BURDEN OF PROOF

26. Before proceeding to examine the evidence, it is helpful to first set out the general approach on the burden of proof, which can be found in Nina Kung v. Wong Din Shin (2005) 8 HKCFAR 387 where Ribeiro PJ said :

“G.2   The burden of proof when a will is propounded

171.   A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased : Barry v Butlin (1838) 2 Moo PC 480; Robins v National Trust Co Ltd & Others [1927] AC 515; Wintle v. Nye [1959] 1WLR 284 (HL).

172.  The standard of proof is the balance of probabilities.  The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm & Another (1952) 86 CLR 439 at p.453; Fuller v Strum [2002] 1 WLR 1097 at p.11120.

173.   This means that the proponent of the will has the persuasive burden of proving on a balance of probabilities that :

(a)   there was due execution of the will;

(b)   the testator was of testamentary capacity; and

(c)   the testator knew and approved of the contents of the will.

(Barry v. Butlin (1832) 2 Moo PC 480; Re Harmes Estate [1946] 3 DLR 497 (PC))

…

176.   If someone wishes to dispute the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.

177.   On the other hand, where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence: Boyse v. Rossborough (1857) 6 HLC 2; Craig v. Lamoureux [1920] AC 349 (PC).  These pleas presuppose execution on the will by the testator.  The allegation is that such execution was procured by acts of fraud or undue influence performed by others: Tyrrell v. Painton & Another [1894] P 151 at p.157; Williams on Wills (8^th ed., 2002) para.5.9.

178.   The person propounding the will has no burden of disproving fraud or undue influence, although he is obviously likely in practice to adduce whatever evidence may be available to counter those allegations.  Where those issues are raised (assuming that the court is satisfied as to due execution, testamentary capacity and knowledge and approval), the court asks itself at the end of the day whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence, as the case may be.”

27. With these principles in mind, I now turn to discuss the evidence.

F.      THE EVIDENCE ADDUCED BY THE PLAINTIFF

F.1.   The plaintiff’s inability to give evidence personally

28. As noted, the plaintiff bears the burden to prove testamentary capacity, knowledge and approval.  Initially, the plaintiff gave oral evidence to prove his case.  But difficulties soon arose.

29. The plaintiff spoke a particular Hunan dialect.  His evidence was interpreted by a Hunan interpreter.  His evidence-in-chief was short.  He was asked to adopt his witness statements, which he did.  However, shortly after his cross-examination begun, I observed that he might have difficulty in understanding the questions put to him through the interpreter.  Upon my query, the interpreter said that the plaintiff had difficulty understanding fully what he was trying to interpret for him.  The interpreter also had difficulty in understanding fully what the plaintiff was trying to say, especially when he was speaking quickly.  The difficulties arose because the Hunan dialect that the plaintiff spoke, which is commonly used by the older generation in the rural regions in Hunan, was not exactly the same as the interpreter’s, which is used by the younger generation in the more urbanized areas of Hunan.

30. The trial was then adjourned to enable the parties to find a suitable replacement interpreter.  However, despite efforts by the solicitors and the interpreter’s office of the court, none could be located.  In the circumstances, the plaintiff’s oral testimony could not possibly or meaningfully continue.  Upon the application by Ms Liu, the plaintiff’s counsel, I ordered that the plaintiff’s witness statements, though adopted by him as his evidence-in-chief, were not to be received as evidence for the purpose of the trial.

31. Because of the interpretation problem, it is obviously unsafe to place any weight on what the plaintiff had said in the box.  I accordingly ignore his oral testimony in its entirety.

32. In his closing submissions, Mr Lo, who was most skeptical of the plaintiff’s inability to speak Punti, criticized the plaintiff for not giving evidence personally.  I shall not repeat Mr Lo’s submissions.  Suffice to say that I have already considered them in full.  The main thrust of Mr Lo’s criticism is that the plaintiff’s language inability is most probably faked and that the plaintiff wanted to avoid giving oral evidence by making use of the interpretation problem so that Chun Nin could give evidence in his stead.

33. I disagree.  The plaintiff’s language inability, which was first spotted by me, is plainly genuine.  Further, he did attempt to give evidence initially.  But for the interpretation problem, he would have continued with his oral testimony.  This negates any suggestion that he wanted to avoid giving evidence personally.  More importantly, the plaintiff was the only witness present when the 2001 Will was executed.  In the absence of his direct oral testimony, he could only rely on hearsay evidence to make good his claims.  That is plainly not in his best interest to do. 

F.2.   Chun Nin’s evidence

34. Since the plaintiff was unable to continue with his oral testimony, he had to rely on Chun Nin’s evidence.

35. Chun Nin first gave evidence on how the Deceased left Hong Kong for Shenzhen on 6 December 2001 and what happened when they were at the plaintiff’s home in Shenzhen.  I shall return to this part of his evidence when I come to the question of undue influence.  For present purposes, this point arising from his evidence is worth noting.  On 7 December 2001, when Chun Nin returned to the plaintiff’s home in Shenzhen, his elder brother Chun Wah gave him a copy of the land search on the Tin Shui Wai Property dated 7 December 2001 (“the Land Search”).  Chun Wah said on the previous night the plaintiff showed the Deceased the land search on the Property that the plaintiff made in 1999 but he forgot where he had placed it afterwards.  So the plaintiff asked Chun Wah to do a new search.  Chun Wah asked Chun Nin to give the Land Search to the plaintiff which he did not when the plaintiff returned home later.  The effect of Chun Nin’s evidence is that the plaintiff had been in possession of the Land Search since 7 December 2001.

36. On the circumstances pertaining to the execution of the 2001 Will, Chun Nin had this to say.

37. On 9 December 2001, the plaintiff, Chun Nin and his brother Chun Shing sent the Deceased to NWH.  At about 6 p.m., the plaintiff came out of the Deceased’s ward and told him that the Deceased wanted to find a lawyer to make a will.  But it was already too late.  So they would find a lawyer on the following day.  Later when Chun Nin arrived at NWH, Chun Nin and Chun Nin discussed about the matter and they decided that Chun Nin would ask his friend(s) to introduce a lawyer on the following day.

38. In the morning on 10 December 2001, Chun Shing went to NWH.  Upon seeing Chun Shing, the plaintiff told him that the Deceased wanted to make a will and asked him to find a lawyer.  Later, Chun Shing returned to NWH with a lawyer.  She was not associated with the plaintiff, Chun Nin or Chun Shing.  She was introduced to the Deceased.  She asked him if he wanted to make a will and he said yes.  When she knew that both the Deceased and the plaintiff, as beneficiary, were from Hong Kong, she suggested that a涉外公證遺囑should be made.  The Deceased agreed.  She then left and returned later with two notary officers唐立清and陳政軍.  The notary officers said they could make a notarized will for the Deceased.  The Deceased then nodded his head, indicating that they could start the process.  The notary officers asked the plaintiff, Chun Nin and Chun Shing to leave the ward.  But the Deceased insisted that the plaintiff should stay, which he did.  Chun Nin and Chun Shing then left the ward and waited outside.  Later, one notary officer came out and asked Chun Shing to fetch the attending doctor唐三元, which he did.

39. Throughout the process when the 2001 Will was executed, Chun Nin and Chun Shing were outside the ward.  When it was finished and after the notary officers had left, the plaintiff told Chun Nin at the bedside of the Deceased and in his presence how the 2001 Will was executed.  The notary officers introduced themselves to the doctor and asked him to examine the Deceased.  After examination, the doctor confirmed that the Deceased was of sober mind.  Then the notary officers asked the Deceased for information about his family background, assets and contents of the will.  They then wrote the 2001 Will according to the Deceased’s instructions.  They read the contents of the Will to the Deceased once.  The Deceased knew that the contents were accurate and then signed and affixed his fingerprint on it.  The Deceased then asked Chun Nin not to tell anyone about the 2001 Will.

40. Despite heavy and extensive cross-examination by Mr Lo, Chun Nin was not shaken on his evidence as summarized above.  In his closing submissions, Mr Lo referred to various aspects of Chun Nin’s evidence on the circumstances under which the Deceased left for Shenzhen on 6 December 2001 and what happened at the plaintiff’s home.  Mr Lo submitted that his evidence was unreliable.  As will be seen in a moment, Chun Nin’s evidence on those matters is indeed quite unsatisfactory.  But having considered all the evidence in the round and in particular the documents that I am going to discuss in the next section, his evidence on how the 2001 Will was executed was still credible.  In the circumstances, I find that the 2001 Will was executed in the manner as summarised above.

F.3.   The contemporaneous documents

41. The documents that the plaintiff sought to rely on are :

(1)     An application form by the Deceased for a notary certificate dated 9 December 2001 relating to the 2001 Will.  It is recorded therein that a copy of the Deceased’s identity card, proof of landed property(房屋業權証明)and the original of the will were provided.  The proof of landed property is in fact a copy of the Land Search.

(2)     A record of interview of the Deceased taken by唐立清dated 9 December 2001.  There, the Deceased answered questions put to him by 唐立清, including his mental condition, his illness, his family background, his intention to make a will, his intention to include the Tin Shui Wai Property in the will to be made; and the will was to be written by the person who wrote it on his behalf(代書人)upon his instructions.

(3)     A record of interview of Dr 唐三元recorded by唐立清dated 10 December 2001.  There, Dr 唐三元confirmed that the Deceased was of sound mind(神志清醒)and had the capacity to carry out civil acts(有民事行為能力).

(4)     The Notary Certificate No.279 of 2001, certifying that the Deceases signed the 2001 Will in the presence of唐立清and陳政軍on 10 December 2001 inside Ward 405 of NWH.

(5)     Another record of interview of Dr唐三元apparently recorded by another notary officer dated 12 November 2003.  There Dr 唐三元reiterated that when the Deceased executed the 2001 Will, he was of a sound mind.  Although the doctor himself was not present when the Will was executed, he knew that a lawyer and notary officers were there.

(6)     A certificate issued by唐立清dated 30 January 2004.  唐立清clarified that the date on the interview record of the Deceased (item 2) should be 10 December 2001.  The date 9^th was a slip of the pen(筆^誤).

They all support Chun Nin’s evidence on how the 2001 Will was executed.

42. The above documents are all hearsay.  The defendants did not challenge their authenticity or admissibility.  Mr Lo cast doubt on them by taking a number of points.

43. Mr Lo first complained that none of the notary officers, the lawyer or the attending doctor was called to testify.  They had not even filed any witness statements.  And the plaintiff had not filed any evidence to describe the efforts made to call them.  Adverse inference should be drawn against the plaintiff.

44. All the notary officers, the lawyer and the attending officers are Mainlanders.  Ms Liu told me that they are either unwilling or unable to come to Hong Kong to testify.  And since they are outside jurisdiction, no subpoena could be issued to secure their attendance.  I find Ms Liu’s explanation reasonable and accept it.

45. Further, it must have been the original intention of the plaintiff to give direct evidence personally to deal with all the circumstances pertaining to the execution of the 2001 Will, including those described in the contemporaneous documents (items 1 to 4) identified in paragraph 41 above even without calling the notary officers, the lawyer or the attending doctor.  But now unexpectedly he could not give evidence because of the language problem.  I do not think in such circumstances adverse inference should be drawn against him because he has not called any of them to testify.

46. The second point Mr Lo took it this.  He submitted that where a will is being challenged, the party seeking to uphold the will ought to call at least one of the attesting witnesses to testify and answer questions regarding the circumstances under which the will was signed.  He said he derived the proposition from Oates v. Uzzell [1932] P 19 and Re Webster [1974] 1 WLR 1641.

47. The proposition derived from the two cases above, properly read, is this.  Where the party propounding a will is compelled to call an attesting witness to prove due execution of the will, such witness is to be treated as a witness of the court.  The evidence of such witness is not limited to due execution but may cover other issues as well.  That is quite different from Mr Lo’s proposition.  Here, as noted above, due execution is not even an issue.  Mr Lo’s complaint that no attesting witness is called is groundless.

48. Finally, Mr Lo took disputed the accuracy of the contents of the documents.  It is not necessary to set out all his criticism in full.  Suffice it to say that I have considered them all with care. 

49. Mr Lo particularly took issue on the date of the application from (item 1) and the record of interview of the Deceased (item 2).  Both were dated 9 December 2001.  He submitted that it could not have been 9 December 2001 as the 2001 Will was executed on 10 December 2001.  The simple answer is the maker of those documents made a mistake.  As explained in the certificate of 30 January 2004 (item 6), the date should be 10 December 2001.  I note that no similar explanation has been given for the date in the application form.  Chun Nin frankly admitted under cross-examination that he could not explain why it was dated 9 December 2001.  But I think it is most likely than not that the maker just made the same mistake there.  And I so find. 

50. The thrust of Mr Lo’s attacks on the accuracy of the supporting documents implied a conspiracy theory against the notary officers, the lawyer and the attending doctor, who were all independent professional people, whereby they colluded with the plaintiff to give false information in the documents.  This is a very serious allegation but without any evidential basis whatsoever.  Mr Lo’s attacks must be rejected.

51. I find that the documents referred to above, though hearsay, are all reliable and will accord full weight to them.

F.4.   Findings

52. In summary, Chun Nin’s evidence and the above documents show that :

(1)  The Deceased wanted to make the 2001 Will.

(2) The Deceased gave instructions to the notary officer who then wrote the 2001 Will for him accordingly.

(3) The 2001 Will was read over to the Deceased after it was written.

(4) The Deceased confirmed the contents of the 2001 Will and then signed and affixed his fingerprint on it.

(5) The notary officers and the lawyer also signed on it.

(6) At all material times, the Deceased was of a sound mind.

And I so find.

53. With these findings in mind, I now turn to the substantive issues on the validity of the 2001 Will.

G.      WAS THE DECEASED OF TESTAMENTARY CAPACITY?

54. The defendants contended that the Deceased did not have a sound mind when he executed the 2001 Will.  However, this contention is without any evidential basis whatsoever.

55. In paragraphs 45 and 46 of her witness statement, the 1^st defendant said that upon admission to QEH in November 2001, the Deceased suffered from illusions.  But under cross-examination, she readily accepted that it was only her own observation, which the attending doctor did not take seriously.  And there was no entry in the Deceased’s medical records that he suffered any illusions at all.

56. Sheung Hang said in paragraph 18 of his first supplemental witness statement that the Deceased had an unsound mind when he executed the 2001 Will.  But under cross-examination he readily conceded that he was not sure if at the time of the 2001 Will, the Deceased had an unsound mind.

57. In short, the evidence of the 1^st defendant and Sheung Hang amounts to nothing but mere speculation.

58. Even the defendants’ own expert, Dr Edmund Woo, did not support the defendants’ contention.  Dr Woo was asked to determine if the Deceased had an unsound mind when he executed the 2001 Will.  In his report dated 3 February 2003, Dr Woo found the Deceased was conscious, alert and was not under the influence of delusion or hallucination.  Dr Woo thus concluded that there was insufficient evidence to indicate that he had an unsound mind at that time.

59. Dr Woo’s opinion did not stop Mr Lo, who wanted to call Dr Woo to give evidence if it was possible that the Deceased had a momentary lapse of mind when he made the 2001 Will.  This was clearly a fishing exercise because that possibility was not even alluded to in Dr Woo’s report.  I indicated to Mr Lo that if Dr Woo were to be asked evidence on this point, he should first prepare a further medical report so that the plaintiff could deal with it properly, including adducing medical evidence if necessary.  In the end, Mr Lo did not call Dr Woo.  That being the case, Mr Lo’s suggestion of momentary lapse of mind on the part of the Deceased is also speculation without any evidential basis whatsoever. 

60. In the circumstances, I find that the defendants have failed to discharge the evidential burden of putting the Deceased’s testamentary capacity in issue.

61. In any event, there is clear evidence adduced by the plaintiff to show that the Deceased was of sound mind when he executed the 2001 Will.  According to the record of interview of Dr 唐三元 (item 3 of paragraph 41 above), the Deceased was conscious and alert(神志清醒)and had the capacity to deal with civil matters(有民事行為能力)when he executed the 2001 Will.

62. I find that the Deceased did have the testamentary capacity when he executed the 2001 Will.

H.    DID THE DECEASED KNOW AND APPROVE OF THE 2001 WILL?

63. Both due execution and testamentary capacity have been proved.  It is reputably presumed that the Deceased knew and approved of the contents of the 2001 Will without the need to adduce affirmative evidence thereof.

64. Mr Lo argued that the 2^nd rule in Barry v. Butlin (1838) 2 Moo PC 480 applies and the court’s vigilance having been triggered, the plaintiff is required to dispel suspicious circumstances by adducing positive evidence that the Deceased knew and approved the contents of the 2001 Will.

H.1.   Whether the 2^nd rule in Barry v. Butlin applies?

65. The 2^nd rule in Barry v. Butlin is this :

“…if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and callus upon it to be vigilant and jealous in examining the evidence of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”  (at pp.482-483)

66. The 2^nd rule had since been extended to cover other situations not narrowly confined to cases where the proponent wrote or prepared the will and took a direct benefit from it.

67. Thus in Tyrrell v. Painton & Another [1849] P 151, the 2^nd rule applied when the person who had drawn up the will was someone other than the person who took under it, but where the two were closely related or associated with teach other.  In such cases, the proponent of the will was equally required to dispel that suspicious circumstance by adducing affirmative evidence that the testator did indeed know and approve the contents of the will : see Nina Wang, per Ribeiro PJ at paragraph 218 at p.454B–C.

68. The 2^nd rule is also invoked when it is shown that a beneficiary under the will has been instrumental in procuring or arranging the execution of the will from which he gains a substantial benefit : see Tchilingirian v. Quzounian & Others [2003] EWHC 1220 (Ch), at paragraph 73.

69. Whether or not the 2^nd rule is triggered is a question of fact.  And what brings the rule into operation are the circumstances attending, or at least relevant to, the preparation and execution of the will itself : see Re R, deceased [1951] P 10, at p.17, followed in Ip Wai Hung v. Yip Man Chiu & Others HCAP15/2004, unreported, 19 December 2007, per A. Cheung J at paragraph 72.

70. Here, none of the notary officers or the lawyer was associated with the plaintiff.  While I reject Mr Lo’s argument that the lawyer was the plaintiff’s agent, it was he who arranged her (through his son) to deal with the preparation and execution of the 2001 Will.  Further, a copy of the Land Search was provided to the notary officers for the purpose of making the 2001 Will[2].  And the plaintiff had been in possession of the 2001 Will since 7 December 2001[3].  The only reasonable inference to be drawn, and I so draw, is that it was the plaintiff who provided the copy Land Search to the notary officers.  The plaintiff was also present throughout the whole process of the preparation and execution of the 2001 Will.  And he stood alone to benefit under it.  I find that these circumstances justify the operation of the 2^nd rule in Barry v. Butlin.

H.2.   Was the suspicion dispelled?

71. In approaching this question, I bear in mind that the ultimate aim of the 2^nd rule in Barry v. Butlin is to ensure that the testator did know and approve of the contents of the will.  As explained by A. Cheung J in Ip Wai Hung :

“71.   Before I move on to deal with the facts, it is necessary to observe that the whole point of the second rule in Barry v Butlin, when properly understood, is to ensure that the testator did know and approve of the contents of the will.  That is the ultimate aim.  The rule is a rule of evidence and indeed a rule of good common sense.  It is a particular application of the so-called Re H principle (based on what Lord Nicholls has said in relation to the civil standard of proof in Re H [1996] AC 563, 586–587), as Chadwick LJ has explained in Fuller v Strum [2002] 1 WLR 1097, 1120–1121 (para 70).  All circumstances that are relevant to the issue of knowledge and approval must be examined with vigilance and jealousy.  But the standard of proof remains the civil standard, rather than proof beyond reasonable doubt.

72.     … [Once] the suspicion of the court is aroused, the court would look at the entire evidence with the appropriate degree of vigilance and jealousy, in order to determine whether, on the balance of probabilities, the testator did know and approve of the contents of the will.  The entire evidence must, by definition, include matters and circumstances not attending, or even relevant to, the preparation and execution of the will itself. …

73.     Once such triggering circumstances are present and the court’s suspicion as to whether the testator really knew and approved of the contents of the will is aroused, the court must examine the entire circumstances of the case.  Some of these circumstances may give rise to “suspicions” in the very general sense of the word regarding whether the testator did know and approve of the contents of the will.  But whether they do have such an effect or not, it is really 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. 

74.     One must not be misled by the requirement that the court’s ‘suspicion’ be dispelled into thinking that unless each and every relevant or ‘suspicious’ circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will.  To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will.  Relevant or ‘suspicious’ circumstances are pointers.  They are not the end in themselves.  For the court’s ultimate task is to see whether the court’s ‘suspicion’ can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will.  Its task is not to see to it that each and every ‘suspicious’ circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related.  One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents.  In those cases, the court’s duty is to pronounce in favour of the will.

75.     Furthermore, one must not forget the general principle in probate cases that a testator is quite entitled to be moved by capricious, frivolous, mean or even bad motives in making his will.

76.     Thus in a case where (let us assume) the second rule in Barry v Butlin applies, and where the contents of the will appear, on the face of it, to be irrational (such as disinheriting all but one children in the will for no apparent reasons), that fact (whether one calls it a ‘suspicious’ circumstance or not) must be a circumstance adding to the court’s suspicion that the testator did not know or approve of the will, which the propounder of the will needs to grapple with―even though disinheriting the other children does not by itself triggers the operation of the second rule in Barry v Butlin.  But it does not follow, in my view, that unless the propounder can provide a satisfactory explanation for the apparently irrational contents of the will, he can never successfully propound the will, or establish that the testator has known and approved of the contents of the will.

77.     For as I say, the ultimate aim is to find out whether the testator knew and approved of the contents of the will.  And as Williams has pointed out (at para 13-03) :

‘The law does not call for a perfectly balanced mind, nor is a will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives.  A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride but the court must nevertheless uphold his will.’

78.     In other words, if the entire evidence is such that the court can be satisfied, on the balance of probabilities, with the testator’s knowledge and approval of the contents of the will, despite the fact that there is, on the evidence, no satisfactory explanation for disinheriting the other children, the court should still pronounce for the will, although why the testator wanted to disinherit all his children but one would remain forever a mystery.  That said, it must be emphasised that in balancing the probabilities, one must give appropriate and indeed sufficient weight to the fact that on the evidence one cannot find any satisfactory explanation for the testator’s apparent intention to disinherit all but one of his children in his will.  And all evidence must be scrutinised with vigilance and jealousy.

79.     But my point here is that everything depends on the balance of probabilities.  And the focus of attention must always be and remain the testator’s knowledge and approval, rather than the dispelling of “suspicious circumstances” as an aim in itself.

80.     Since the ultimate issue is knowledge and approval, evidence of the deceased giving instructions for his will, or of the will being read over to him or by him is, by nature, the most important evidence.  This is so, needless to say, in a case where the second rule in Barry v Butlin does not apply, as Williams has pointed out in para 13–22.  But even in a case where the rule does apply, such species of evidence still remains the most satisfactory evidence to establish the deceased’s knowledge and approval.  Thus in Barry v Butlin, Parke B said (at page 485) :

‘Nor can it be necessary that in all cases, even if the testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for or reading over the instrument.  They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognisance of the contents of the will may be brought home to the deceased.  The court would naturally look for such evidence, in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.’

81.     To be complete, it must be pointed out, as Williams has reminded us in para 13–27, that conversely, the mere fact that instructions were given for the will and that the will was read over to the testator may not be enough to remove the suspicion.  It all depends on the facts.”

72. In light of my findings in paragraph 52above, I am satisfied that the Deceased did have knowledge and approval of the contents of the 2001 Will. 

73. Further, as noted, the Deceased went back to Canada in late October 2001 to dispose of his properties there.  The disposition supports the conclusion that the Deceased made the 2001 Will with knowledge and approval.

74. First, the disposition shows that it is not a case where the Deceased suddenly disinherited the defendants’ branch of the family.  The disposition was made substantially according to his testamentary disposition as stated in the 1996 Will with one or two minor adjustments.  (See the affidavit of Tommy Tao Wing Keung dated 18 August 2003 for details of the disposition.)  Thus, the defendants’ branch of the family had been taken care of even before his death. 

75. Second, the disposition shows that the Deceased did not regard the 1996 Will as his last testamentary arrangement.  It is therefore probable for him to make to 2001 Will two months later.

76. In fact, the disposition of the properties in Canada and the subsequent making of the 2001 Will are entirely consistent with the Deceased’s character.  It is the evidence of the 1^st defendant that the Deceased was a careful person with a strong and determined character.  He also loved his family very much.  That must, on the evidence before me, include the plaintiff’s and the defendants’ branch of the family.  That being the case, it is most probable that he would benefit them all by firstly disposing of his properties in Canada in favour of the defendants and then later making the 2001 Will in favour of the plaintiff.  (Indeed, it is the 1^st defendant’s evidence that the Deceased also made testamentary disposition of certain properties in Hong Kong to Ms Chan, his cohabitee in Hong Kong.  All those he loved were thus taken care of.)

77. Finally, I would deal with the defendants’ contention that the Deceased was hostile to the plaintiff briefly thus.  The defendants raised this contention, hotly disputed by the plaintiff, in order to argue that the Deceased would not have made the 2001 Will in favour of him.

78. In her witness statement, the 1^st defendant referred to certain events that took place back in the 1980s and the early 1990s.  In my view, those matters which all took place a very long time ago, could not have any significant impact on the Deceased’s attitude towards the plaintiff.  Further, any suggestion that the Deceased did not have a good relationship with the plaintiff does not sit well with the fact that the Deceased, a dying old man, left for Hunan with the plaintiff and his sons in December 2001 when he must know that the chance of his recovery was most remote.  This shows that he had trust in them, to say the least.

79. The defendants also relied on the evidence of one Ms Li Mui.  In her witness statement, Ms Li said that she knew the Deceased since the 1950s.  She knew the affairs of Deceased because she knew the Deceased and his family well and the Deceased often told her his personal and family affairs.  She said the Deceased did not have a good relationship with the plaintiff.  However, Ms Li said in the box that since about 1965, she ceased to be a neighbour of the Deceased.  She seldom met the Deceased since then.  At most, they saw each other only roughly once every year.  And most importantly, the Deceased did not mention his personal or family affairs to her.  What she said in her oral testimony cast serious doubt on what she asserted in her witness statement.  I find her evidence most unsatisfactory, which must be rejected in its entirety.

80. I reject the defendants’ contention that the Deceased was hostile to the plaintiff.  Even if proved, this contention pales into insignificance when contested by the clear and direct evidence in paragraph 52 above, which unequivocally shows that the Deceased knew and approve of the contents of the 2001 Will.

81. For the above reasons, I find that the Deceased knew and approve of the contents of the 2001 Will.

I.     WAS THE DECEASED UNDER UNDUE INFLUENCE WHEN HE EXECUTED THE 2001 WILL?

82. Finally, I come to the question whether the Deceased suffered from undue influence when he executed the 2001 Will.

I.1.    The approach

83. The approach to undue influence is well summarised in Edwards v. Edwards [2007] All ER (D) 46, where Lewison J said :

“47.   There is no serious dispute about the law.  The approach that I should adopt may be summarised as follows :

i)     In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii)     Whether undue influence has procured the execution of a will is therefore a question of fact;

iii)    The burden of proving it lies on the person who asserts it.  It is not enough to prove that the facts are consistent with the hypothesis of undue influence.  What must be shown is that the facts are inconsistent with any other hypothesis.  In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influenceas vitiating a testamentary disposition;

iv)    In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

v)    Coercion is pressure that overpowers the volition without convincing the testator’s judgment.  It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate.  Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi)    The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will.  The will of a weak and ill person may be more easily overborne than that of a hale and hearty one.  As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything.  A ‘drip drip’ approach may be highly effective in sapping the will;

…

ix)    The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

84. In his closing submissions, Mr Lo purportedly followed the above approach by raising four hypotheses and argued that by elimination, the evidence is consistent with that of undue influence only.  With respect, Mr Lo’s approach is wrong.

85. In my view, what Lewison J said in paragraph 47(iii) of his judgment, when properly understood, is meant to illustrate the heavy burden that the person asserting undue influence has to discharge.  I do not think his Lordship meant that all different hypotheses should be raised, which exercise can be quite impossible, to see if by elimination the evidence supports undue influence only.  As rightly pointed out by Ms Liu, the court should not speculate what the Deceased had or had not done or, even worse, should or should not do.

86. As noted, the burden of proving undue influence rests squarely on the defendants.  I readily accept that it would be rare for a party asserting undue influence to prove it by way of direct evidence.  In most cases, he has to rely on circumstantial evidence.  So do the defendants here.  They relied on a number of matters and contended that the plaintiff deliberately got the Deceased into the Mainland, cut the communication between him and the defendants thereafter and put him under their dominion.

87. To see if the defendants’ case is sustainable, a fuller discussion of the evidence is in order.

I.2.    Discussion of the evidence

I.2.a.     Discharging from NLH and going to Shenzhen

88. On 4 December 2001, the Deceased was transferred to NLH for continuing institutional and symptomatic care.  He was discharged on 6 December 2001 when he left with the plaintiff and his son.  They then took him to the plaintiff’s home in Shenzhen.  Sheung Hang went to Shenzhen with them and returned to Hong Kong the same evening.

89. The 1^st defendant said the plaintiff’s son referred to above was Chun Wah.  Initially in his first witness statement, Sheung Hang said that it was Chun Nin.  But he said in his supplemental witness statement that he made a mistake because he just adopted what the plaintiff said in his witness statement that it was Chun Nin.  When he saw Chun Nin in court on 15 January 2008, he came to realise that Chun Nin was not the one.

90. On the other hand, Chun Nin maintained that he was the one.  Chun Nin was cross-examined on the events that took place in NLH and how he and the plaintiff took the Deceased from NLH to Shenzhen and what took place there.  It is not necessary to set out in detail his evidence on those matters, which are rather trivial.  Suffice it to say that I have duly considered them with care and find his evidence unsatisfactory.

91. On balance, I prefer the evidence of the 1^st defendant and Sheung Hang that it was Chun Wah and not Chun Nin.  In other words, I find that Chun Nin was not present when the events referred to in paragraph 88 took place.

92. What I am left with is the evidence of the 1^st defendant and Sheung Hang.  They are not shaken under cross-examination.  I find their evidence on those events reliable and accept it.  In summary, their evidence shows that :

(1)     The Deceased did not like to stay in NLH at all.  He took the view that NLH was for patients with terminal illness.  He wanted to be discharged as soon as possible, even if that was against medical advice.

(2)     On 6 December 2001, the plaintiff, his wife and son made a scene at NLH when they wanted to have the Deceased discharged contrary to medical advice.

(3)     Despite repeated persuasions that he should stay in NLH, the Deceased insisted to go.

(4)     The Deceased was happy when he left NLH.

(5)     The Deceased wanted to go back to the Mainland but the 1^st defendant did not agree.  The Deceased insisted.  He though that there might still be a gleam of hope if he was to receive treatment in hospitals in the Mainland.

(6)     In the plaintiff’s home in Shenzhen, the Deceased did not tell Sheung Hang that he would go to Hunan.

93. In my view, the evidence summarised above clearly demonstrated that it was the Deceased who insisted to leave NLH for the Mainland with a view to receiving treatments in hospitals there.  The plaintiff just went along with his wish.  It does not support the defendants’ contention that the plaintiff deliberately removed the Deceased into the Mainland so that they could exercise dominion over him.

I.2.b.     Leaving for Hunan

94. I do not consider the fact that the Deceased had not told Sheung Hang or the 1^st defendant that he would leave for Hunan is an indicator consistent with undue influence.  It is Chun Nin’s evidence, which I accept, that the Deceased wanted to go back to Hunan.  In my view, it is not surprising for a dying old man, like the Deceased, to wish to go back to his native place before his imminent death.  If the plaintiff wanted to exercise dominion over the Deceased, they could have well done it in Shenzhen.

I.2.c.      Change of hospitals

95. The Deceased was first admitted into HWH on 6 December 2001.  He then changed to LWH on 7 December 2001.  On 8 December 2001, he left for Guangzhou and then travelled to Hunan by overnight train.  There he was admitted to NWH.

96. Mr Lo complained that there was a frequent change of hospitals since the Deceased had returned to the Mainland.  The plaintiff should have admitted him into one hospital for thorough treatment.  I agree with Ms Liu’s submission that the change of hospitals was necessitated by the Deceased’s wish to go back to Hunan.  I do not see anything objectionable.

97. Mr Lo also complained that the plaintiff and Chun Nin had not taken steps to ensure that the Deceased’s medical records were available prior to transfers of hospitals.  I agree that their conduct is far from satisfactory.  But there is nothing in the evidence to suggest that the lack of records would adversely affect the treatments that the Deceased would receive or his conditions, physically or mentally.  This complaint does not assist the defendants much.

I.2.d.     Refusal for injection of albumen

98. Mr Lo complained that the Deceased was refused injection of albumen, a nutrient, when he was staying in NWH.  Chun Nin said it was refused because the Deceased did not want the injection.  Chun Nin’s evidence is supportable by Sheung Hang’s evidence that the Deceased made his own decision on medical treatment and was not easily persuaded.  (In fact, he had defaulted follow-up on chemotherapy since September 1999.)  I accept Chun Nin’s explanation.

I.2.e.      Leaving NWH

99. The defendants’ evidence on how the Deceased left NWH is this.

100. After Sheung Hang left Shenzhen, he and the 1^st defendant tried to contact the Deceased by phone but to no avail.  They then reported the matter to the Hong Kong police on 10 December 2001.  On 11 December 2001, through Interpol, the 1^st defendant came to know that the Deceased was staying in NWH.  They arrived at NWH in the early hours of 12 December 2001.  But the nurse told them that he/she had told the plaintiff that the Deceased’s family in Hong Kong had made enquiry about the Deceased.  The plaintiff then caused the Deceased to be discharged from NWH the previous night.  According to the discharge record, the Deceased left at about 9 p.m.

101. Chun Nin said in the night of 10 December 2001, a noisy old man came to share the room with the Deceased.  As the old man coughed a lot, the Deceased could not sleep.  On 11 December 2001, Chun Nin asked the nurse to move either the Deceased or the old man to another room but the nurse said there was no vacancy.  The Deceased then insisted on leaving NWH and asked Chun Nin to deal with the discharge procedure, which did not finish until about 9 p.m. that night.

102. I am unable to accept Chun Nin’s evidence.  As rightly pointed out by Mr Lo, if the problem was truly with the coughing old man, one would reasonably expect the matter to be raised early on 10 December 2001.  It would be incredible for the discharge process to last until 9 p.m.  I reject his version why the Deceased was discharged from NWH.

103. On balance, I find the evidence of the 1^st defendant and Sheung Hang on this point more credible and accept it.  But I do not think it matters much for two reasons.  First, according to the discharge record, the Deceased strongly requested to leave NWH.  So after all, it was the Deceased’s wish to leave on 11 December 2001.  It is not clear on the evidence before me why he decided to do so.  Anyhow, it is inconsistent with the defendants’ case that the plaintiff wanted to keep him from the defendants so as to exercise dominion over him.  Second, the incident took place after the Deceased had executed the 2001 Will.  The Deceased’s state of mind then would have little bearing on the question if the Deceased was under undue influence when he executed the 2001 Will earlier.

I.2.f.      Keeping the whereabouts of the Deceased from the defendants

104. Chun Nin agreed that he did not give the telephone and address of the plaintiff’s home in Hunan to Sheung Hang when they were in the plaintiff’s home in Shenzhen on 6 December 2001 and when he already knew that the Deceased would be going to Hunan.  He failed to give any satisfactory answer why he did not do so if he did not want to keep the whereabouts of the Deceased from the defendants.

105. The evidence of the 1^st defendant and Sheung Hang, which I accept, is this :

(1)     When Sheung Hang returned to Shenzhen on 7 December 2001 and did not see the Deceased, the plaintiff refused to reveal his whereabouts.

(2)     The plaintiff took away the mobile phone of the Deceased.

(3)     The plaintiff took the Deceased to Guangzhou and then to Hunan without any prior notice to the 1^st defendant or Sheung Hang.

(4)     The plaintiff refused to tell the 1^st defendant the exact whereabouts of the Deceased except over one telephone conversation before 10 December 2001 the plaintiff’s wife told the 1^st defendant that the Deceased had left Shenzhen for Hunan.  Then the 1^st defendant was unable to contact the plaintiff or his wife any more.

(5)     A public address was given as the Deceased’s address in the hospital admission record with NWH.  Even Chun Nin accepted that it would be difficult to locate a person at such an address.  The inference is clear.  The address was deliberately given to prevent any person from locating the Deceased by reference to the admission record.

106. In my view, the evidence is overwhelming.  The plaintiff and his family did conceal the whereabouts of the Deceased since his departure to the Mainland from the defendants thereby cutting any means of communication between them.  This is an indicator of possible undue influence.

I.2.g.     Other factors

107. Mr Lo relied on other factors as well.  The Deceased was undoubtedly very ill and weak when he left for the Mainland.  The long and tiring journey from Shenzhen to Hunan must have made him more fragile.  Given his condition, he had to rely on the plaintiff to take care of his welfare.  The Deceased was in an unfamiliar environment accompanied by the plaintiff and his family only.  Those factors no doubt existed and are indicators of possible undue influence.

108. Mr Lo further submitted that the plaintiff had always wanted the Deceased’s assets.  He relied on the 1^st defendant’s evidence that disputes allegedly took place between the Deceased and the plaintiff back in the 1980s and the early 1990s.  As I have said, those events took place a long time ago.  I do not think any weight should be attached to them, even if proved.

I.2.h.     Conclusion

109. The factors which I have identified above as being indicative of possible undue influence must be viewed against all the circumstances of the case.  In particular, it must be borne in mind that the Deceased had a strong character and he loved his family members much.  I do not think those factors, viewed individually or collectively, would have the effect of sapping the plaintiff’s will.  The board picture remains the same : the Deceased, as a loving father, having made provisions for the defendants by disposing of his properties in Canada in October 2001, then proceeded to make provisions for the plaintiff, his eldest son in December 2001 by virtue of the 2001 Will.

110. Accordingly, I find that on balance, the defendants have failed to prove that the Deceased suffered from undue influence when he executed the 2001 Will.

J.     ORDERS

111. For the above reasons, I find that the 2001 Will is valid.  The 1996 Will is thereby revoked.

112. I will enter judgment for the plaintiff for an order propounding the 2001 Will in solemn form and pronouncing that the 1996 Will is invalid and has been revoked by the 2001 Will.  The counterclaim is dismissed.

113. On costs, the parties are directed to file their submissions within 14 days after the handing down of this judgment.  I will then dispose of it on paper.