THM

HCMH 16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATIONS UNDER THE MENTAL HEALTH

ORDINANCE NO. 16 OF 2008

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HCMC 2/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO. 2 OF 2008

(transferred from FCMC No. 13195 of 2007)

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(Heard together)

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D E C I S I O N

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1.  H is mentally incapacitated within the meaning of Order 81 of the Rules of the High Court.  Prior to his disability, his 2^nd wife, W had already issued divorce proceedings against him.  There are three competing applications for appointment as his guardian ad litem in these proceedings. 

2.  The first one was issued by W on 19 March 2008 which sought, among other things, an order that the Official Solicitor (“the OS”) do ascertain whether he should be appointed guardian ad litem for H.  The second one dated 20 March 2008 was issued by S, the younger son of H of the 1^st marriage.  S wanted to be appointed as the guardian ad litem.  The third one dated 22 April 2008 was issued by H’s ½ sister K, who also wanted to be appointed as the guardian ad litem. 

3.  There are two competing applications for appointment as a committee of H under Part II of the Mental Health Ordinance, Cap. 136.  The first one dated 9 April 2008 was made by the son S.  The second one dated 30 May 2008 was made by the sister K.  W also filed an affirmation suggesting that the OS should be appointed.

4.  Poon J ordered on 16 May 2008 that all these applications are to be dealt with together.

BACKGROUND

5.  H was born in January 1943 and is now 65 years old.  His father died when he was a child.  His mother married again and gave birth to two daughters who were his half-blooded sisters E and K.  He first married one Madam Chen in 1977.  

6.  In the summer of 1989, he left Madam Chen and started cohabitation with W at her home.  He and Madam Chen had a divorce which concluded in 1994.  He married W on 30 May 1995. 

7.  When H left Madam Chen in 1989, he also left behind his two sons Y and S who were then aged 9 and 7 respectively.  H and W did not have any child of their own. 

8.  H resumed contact with S in early 1997.  S was then 15 years old.  He moved to live with H and W in May or June 1997.  He then went to the US in August 1997 to study in a boarding school.  During the holidays, he joined H and W either in Hong Kong or in their vacation home in Los Angeles.  He is now a law student with a university in the US.  The elder son Y has however refused to meet with H at all.

9.  H has already retired.  He went to Los Angeles in September 2006.  His mother also lived there.  However, his mother died in the same month when he arrived and he was very much aggrieved by it. 

10.  He was diagnosed to have a stage-4 brain tumour in October 2006.  He had a surgery in the US in November 2006 and had the tumour removed. 

11.  His relationship with W then deteriorated.  W instituted divorce proceedings against him in the US in August 2007 and moved out of the vacation home in Los Angeles.  H tried to resolve these proceedings with W by mediation, but W did not respond to his request.  The American proceedings were later withdrawn by W who filed a fresh petition for divorce in the District Court in Hong Kong on 30 October 2007. 

12.  H returned to Hong Kong in about February 2008 and unfortunately suffered from a relapse of the brain tumour in late February.  He was admitted to a hospital on 8 March 2008.  On 13 March 2008 he was examined by two psychiatrics who were both on the List of Approved Doctors for the purposes of section 2(2) of the Mental Health Ordinance.  Both doctors certified that he was incapable by reason of mental incapacity as defined in the Ordinance of managing and administering his properties and affairs.  He was suffering from delirium due to brain tumour.

THE DIVORCE PROCEEDINGS

13.  W in her amended petition filed on 30 October 2007 pleaded that H had behaved in such a way that she could not reasonably be expected to live with him.  She particularized her complaints as her alienation by S from H, H’s siding with S and not treating her as a partner, the transfer by H of US$3 million from his bank account to S without her knowledge or consent, H’s failure to give her the monthly support of HK$120,000 and daily expenses, the making of a will by H (“the 1^st will”) leaving substantial assets and the two homes in Hong Kong and the US to S, and H being cold to her.

14.  H filed an answer and cross-petition on 29 November 2007.  He denied all the allegations of W save the refusal to sign a cheque for $120,000 for W at the end of July 2007.  He pleaded that W had from time to time made wrong accusations against S.  Whenever there was difference of opinions between W and S on living and medical treatment and if H should opt for the views of S on the merits, W would argue with H.  H asserted that the transfer of US$3 million to S was known to W.  He also pleased that after his surgery in November 2006, W’s attitude to S worsened.  On the 1^st will, H pleaded that he had left US$6 million and the permanent right to live in the two matrimonial homes to W. 

15.  In the cross-petition, H also pleaded that he could not reasonably be expected to live with W by reason of her behaviour.  The particulars say that W had opposed the making of a will by H as she knew that H would leave more assets to S than to her.  Upon learning of the content of the 1^st will, W cried before H all night just before the day when H was to undergo surgery.  After the surgery, W prevented the doctors from telling H his slim chance of survival beyond two years and instead she lied to H that he had fully recovered.  W was hostile to S since late 2006 when H started to arrange for his estate.  W had wrongly accused S for setting up tapping device in the matrimonial home in Los Angeles when an inspection by hired designated personnel found none.  W detested and disliked the side effects of chemotherapy on H.  W refused to give H money when chemotherapy made it inconvenient for him to go to the bank.  W left home for one night in July 2007 and refused to tell H her whereabouts.  At the end of July 2007, W transferred US$4.4 million from her joint account with H to her own account when the money belonged to H before their marriage.  Since the transfer, W stopped talking to H and left home every day without disclosing her whereabouts.  W filed a divorce suit in the US in August 2007 without reasonable ground and when H was undergoing treatment thereby creating stress for H.  W left the home in Los Angeles upon service of the American petition for divorce on H.  She refused to stay behind despite the earnest request of H.  Upon service of the application for divorce on H, W also instructed her Hong Kong lawyers to take away a large number of files from the Hong Kong matrimonial home and changed the lock to these premises.  W had also falsely accused H of having stolen her personal belongings.

16.  W also filed a reply and answer to the cross-petition on 27 December 2007.  She admitted the deterioration of her relationship with H but put the blame on S.  By way of example, she referred to her exclusion from the preparation of the 1^st will in November 2006 when previously she was fully involved in the management of financial affairs.  She believed that her isolation was at the behest of S.  She was also barred from getting any information from the American lawyers on the 1^st will and she believed that it was to prevent her from knowing that S was to get the bulk of H’s assets.  She alleged that S had asked H to leave all assets to S as S would continue the family name.  She also alleged that her change of attitude to H was in response to her being alienated by S from H.  She perceived a change of affection of H to her and she was distressed.  She had worked tirelessly to support H before and after the diagnosis of his illness.  She also provided answers to the particulars of the cross-petition.

17.  On the whole, the arguments between W and H as can be gleaned from these documents are in respect of what H had done for and in relation to S, the conduct of W vis-à-vis that of S, arguments over transfers of large sums of money and the distribution of assets by H in his will.

MEDICAL POWERS OF ATTORNEY AND THE 2^ND WILL

18.  On 8 November 2007, H signed a medical power of attorney in accordance with the laws of the US appointing S as his attorney to make health care decisions for him when he was unable to make his own decisions. 

19.  H also executed his 2^nd will on the same day (“the 2^nd will”).  The 2^nd will revoked all his previous wills.  It gave US$1 million to his elder son Y and everything else to his younger son S.

20.  On 19 November 2007, H executed another document designating S as his personal representative in accordance with the laws of the US for S to be provided by the doctors of his health information and medical records.

DISCOVERY AND NON-MOLESTATION AND OUSTER ORDER

21.  H then took out a summons on 28 December 2007 for discovery of documents belonging to W, H and the companies owned by either of them solely.  H made an affirmation to support the application.  He said W’s lawyers had taken away from their Hong Kong matrimonial home and their Hong Kong office many important documents.  He tried to arrange through lawyers for inspection of these documents but failed.  He only succeeded in getting back his own documents which were previously kept in the office.  He also procured an affirmation by a Madam L, an employee of W to prove the taking away of documents by W’s lawyers.

22.  On 15 January 2008, W applied and obtained an ex parte on notice order of non-molestation and ouster.  The application was supported by an affirmation saying that H had threatened W’s safety to demand to move back to the Hong Kong matrimonial home together with S.  W again said that the breakdown of the marriage was because H had sided with S.  She also took out a summons on 16 January 2008 for maintenance pending suit.

23.  H’s discovery summons was disposed by a consent order made on 18 January 2008.  The discovery sought by H was extensive.  The consent order was subject to an order of the Court on the appointment of a proxy for H, if necessary, to inspect the documents at the office.  The parties subsequently discussed on the appointment of proxy for H, but no agreement was reached.  H filed an affirmation on 1 February 2008 asking for an order to appoint both S and Madam L to attend the inspection.  H said that due to his health conditions, S was more capable than him to determine the nature of the documents and to explain the factual nature of the same to his solicitors for advice.  This matter was later resolved by another consent order dated 29 February 2008 whereby S was excluded from the inspection.

W’S REQUEST TO MEET WITH H

24.  The first Appointment of the divorce proceedings took place on 7 March before Her Honour Judge Melloy.  W’s counsel at the hearing requested for a meeting of W with H face to face to see whether they could sort things out themselves.  The request was made because W believed that S was keeping H away from her.  W wanted to make amends with H and see if the matter could progress on a sensible discussion.  W’s counsel also requested the solicitor of H to pass the request to H direct and not through S.  The solicitor replied that H was accompanied by S every time he saw the solicitor.  The solicitors said that it was impossible to exclude S from any discussion and he did not intend to do that.  The solicitor said this without even taking any instructions from H on whether H was disposed to hearing any request from W in the absence of S.  It appeared that this was a matter for H to decide.

EVENT ON 13 MARCH 2008

25.  H was admitted to a hospital on 8 March 2008 because of the relapse of his brain tumour.  According to a 2^nd affirmation by the sister K filed on 3 May 2008, H had on 13 March asked K to engage lawyers to represent him in the divorce proceedings in place of the lawyers instructed by S.  K then brought along a solicitor and counsel to the hospital to see H on the same day with a view for H to execute instructions to engage that solicitor and counsel in the divorce proceedings.

26.  From a letter dated 2 May 2008 by the solicitor, it appeared that the solicitor had tried to explain the purpose of the visit to H, who appeared to understand the explanation.  But in the course of the explanation, S suddenly became very agitated, impetuous and obstructive.  He roared at H and fended off the approach of the solicitor and counsel to H.  The solicitor could not continue with the explanation.  He and counsel then waited for the arrival of the then solicitors for H.

27.  K further alleged in her 2^nd affirmation that before the roaring of S at H, H appeared to be able to interact and communicate with her without much difficulty.  However, after S had so behaved, H appeared to respond to questions incomprehensibly and became unable to give instructions to anyone on anything.

28.  K then telephoned W and told her that H was in the hospital.  W then came to the hospital.  She was followed by her solicitor shortly thereafter.  W attended to H and fed him some food.  She went there again on the next two days.

29.  Two psychiatrists also came in the evening of 13 March to assess the psychiatric conditions of H.  Both doctors were on the List of Approved Doctors for the purposes of section 2(2) of the Mental Health Ordinance.  After holding discussions with the relatives of H and examining H, they both certified that H was incapable by reason of mental incapacity as defined in the Ordinance of managing and administering his properties and affairs.  At that point, his then solicitors in the divorce proceedings could not act for him any longer.

APPLICATIONS FOR APPOINTMENT OF GUARDIAN AND LITEM

W’s application and supporting affirmation

30.  On 19 March, W took out a summons for an order that the OS be directed to ascertain whether the OS should be appointed as the guardian ad litem for H in the divorce proceedings.  The summons also sought an order for the OS to ascertain whether H wanted to meet with W face to face or wanted W to attend to him.

31.  In the supporting affirmation, W referred to her request made through counsel on 7 March and her meeting with H on 13 March in the hospital despite opposition from S.  She said despite the marital difference, she was still concerned about the health and comfort of H.  She would like to make amends with him so that she will have no regret at a later date.  She also said that her marital dispute with H could be resolved more readily and with less acrimony if she could discuss the matter with H at an early FDR.  She accused S as the person who was driving the litigation.  She said S’s interests did not coincide with those of H and might be in conflict with H.  She also believed that the protracted discovery/inspection was at the behest of S.

S’s application

32.  S also issued a summons on 20 March for his appointment as the guardian ad litem of H.

The report of the OS on guardian ad litem

33.  On 20 March, Her Honour Judge Melloy ordered the OS to report to the Court within 28 days.

34.  The OS interviewed S.  S said that he was aware of the wishes and views of H in the divorce proceedings because he had been involved in the litigation since the service of the petition for divorce on H.  He had accompanied H to seek legal advice and to give instructions to the solicitor before H’s health had deteriorated.  He denied that his interest under the 2^nd will would pose a conflict of interest.  He understood that it would be in the interest of H to expedite the proceedings and he had no intention to drag the matter out unnecessarily as alleged by W.  He opined that it would be contrary to the interest of H to appoint someone who had no knowledge of the background of the matter and the financial positions of the parties.  Such person would have to spent substantial amount of time and effort to familiarize with the background and to understand the intricacy of the financial position of the parties.  It seems that there were some problems of communication between the OS and the legal representatives of K and K was not interviewed.   

35.  The OS then made a report to the Court on 17 April.  In the conclusion, the OS favoured the appointment of S as the guardian ad litem.  The reasons more or less those advanced by S in the interview.  The OS also said that he would also not be able to give any instruction on the cross-petition of H.  The OS was not too worried about delay as may be caused by conflict of interests of S to those of H as progress of the proceedings is governed by litigation procedure and the timetable given by the Court.  Any unsuitable guardian can also be removed by the Court subsequently.

K’s application and supporting affirmation

36.  On 22 April, K also applied to be the guardian ad litem with a supporting affirmation.  She said she did not have any conflict of interest with H and W in the divorce proceedings.  She was aware of the 2^nd will and she was not a beneficiary under it.  She alleged that after H was hospitalized, S had been interfering with H by asking him not to liaise with W, W’s solicitors, E, K and K’s legal representatives.  She also alleged that H had never instructed his solicitors in the divorce proceedings and it was S who gave instructions all along.  I think this is a bold statement and has been contradicted by the evidence.

37.  She filed a 2^nd affirmation on 3 May because of the receipt of the OS’s report of 17 April and an ex parteapplication of S together with supporting documents seeking to be appointed as a committee of H pursuant to the Mental Health Ordinance.  I will refer to this application below.  She gave her story of what happened at the hospital on 13 March.  Her account was similar to that of her solicitor but differed from that of S.  She also referred to the two medical powers of attorney executed by H in favour of S appointing S to be the person to make health decision for H in case of his incapacity and for S to receive medical information on H.  They were executed on 8 and 19 November 2007.  She also referred to the 2^nd will.  She asserted that the position of S as the medical attorney was in conflict with his being a beneficiary under the 2^nd will.  Hence S was unsuitable to be appointed as the guardian ad litem.  She also alleged that S had stolen documents from W.  S has denied this in his affirmation.

38.  She then dealt with her relationship with H.  She and her elder sister E used to live together with H since childhood.  Their relationship was very harmonious.  H also played the role of the father in the family as K’s father had passed away when she was young.  After H had fallen ill in 2006, she and E had been taking care of him by his bedside almost everyday.  They had also strived for his best interest in the divorce proceedings. 

39.  On the other hand, she alleged that S appeared to be very antagonistic in these proceedings.  She also alleged that S intended to have a full trial of these proceedings if he should be appointed as the guardian ad litem.  Taking into account of the subsequent appeal, she said the legal battle will be arduous and painful if S should be appointed.  However, if she should be appointed, she anticipated that there would be an amicable settlement.  The lengthy battle and legal costs can be avoided.  She also said that she had been given to understand from H that H desired to settle the proceedings as amicable as practicable.  H also did not want to destroy his relationship with W completely despite they were going to be divorced.  K alleged that S had been exerting undue influence on H to proceed with the proceedings forcefully.  Since she had no conflict of interest and was not a beneficiary of H’s will, she could be a more neutral guardian ad litem for H.

S’s affirmation in reply to K

40.  S made an affirmation on 7 May to reply to K.  He said E and K knew that he was the main beneficiary under the 2^nd will and they were trying their best, including acting in concert with W, to get into H’s assets.  He repeated that he was the only person H trusted and he knew H’s intention in these proceedings whilst K did not.  He also produced a document executed by H which stated that H wanted to recover various properties he placed in W’s name or in the names of various companies.

APPLICATION FOR APPOINTMENT AS A COMMITTEE UNDER PART II OF MENTAL HEALTH ORDINANCE

S’s application, certification of family and property and supporting affirmation

41.  Whilst the application for appointment of guardian ad litem was pending, S made an application on 9 April for appointment as a committee of the estate of H under Part II of the Mental Health Ordinance.  He also made a very lengthy Certificate of Family and Property (“the Certificate”). 

42.  In the Certificate, he referred to the family background.  He mentioned his own academic achievements and that H was proud of him.  He said H had immense trust and confidence in him.  He cited as examples of such trust the two medical powers of attorney made by H in his favour.  H had also transferred US$3 million to him upon being diagnosed with brain tumour.  That was to provide him with financial security.  He also referred to the two wills of H with the 2^nd will giving US$1 million to his elder brother Y and everything else to him.  He was also the executor and trustee of both wills. 

43.  Since early 2007, he had taken special leave from his university to suspend his study so that he could take care of H and keep H company on a full-time basis.  He had also assisted H in handling the divorce proceedings both in America and in Hong Kong.  He had discussed with H the strategy for dealing with them. 

44.  H suffered from a relapse of the brain tumour in late February 2008 and was admitted to hospital on 8 March.  Beginning from early March, H was also suffering from physical weakness and showed signs of deterioration of mental capacity.

45.  S then referred to the marriage of H and W in 1995.  He said H’s mother, E and K were all against this marriage and they despised W thinking that she married H out of greed for money.  Since then, E and K hated W so much so that they voiced their passionate resentment to S.  However, H and W lived in harmony.  The harmony continued even after S had joined them in 1997.  There was also no problem between S and W.

46.  S then referred to the properties of H.  He said H had many properties which were held by W in name only.  Some of the assets were entrusted to W in order to satisfy the then company law requirement of at least two shareholders for a company.  He also believed that some of H’s properties had gone to W’s nominal ownership because H had acted either inadvertently or unknowingly.  His ground of belief was that the assets were purchased with H’s money and H never intended to make a gift of these properties to W.  He also believed that W might have achieved the nominal ownership by herself as she was somewhat involved in handling the financial affairs of H and was acting as the secretary of H.  S also said that W had promised to return the assets to H though she did not honour her promise. 

47.  He said that W’s attitude to him turned belligerent and was like another person.  She made to H unfounded complaints against him and argued with him on matters big and small.  He felt that W was trying to alienate him from H.  Her attitude to H also turned hostile.  Instead of showing care and support to H, she kept on quarrelling with him.  She was particularly mad when H dismissed her complaints against S.  She had argued with H over the content of the 1^st will.  Such was not conducive to H’s recovery.  The relationship within the household broke down rapidly and W’s attitude to H and S worsened in 2007.

48.  On 19 July 2007, W also secretly withdrew US$4.4 million from her joint account with H when the money belonged to H.  Since then, W refused to talk to H or spend time with him.

49.  On 21 August 2007, W presented her petition for divorce in California.  That was a serious blow to H.  Upon service of the petition, she also left the vacation home.  H was then under immense stress and relied more on S.  W also occupied the Hong Kong matrimonial home and excluded H therefrom.  S believed that there was no more love between H and W and W was only concerned with getting as much money from H as she could by seeking ancillary relief against him.  S also believed that W had reasons to be against him as he had done things against her financial interests in relation to H’s assets.  He also said that by the petition for divorce, W was trying to hold onto the assets of H which were merely in her name only.

50.  S further said that after W had seen H in the hospital on 13 March, the first thing she did was to apply in the divorce proceedings for appointing the OS as the guardian ad litem for H.  He saw an ulterior motive of W in this.  He believed that the true reason was that W wished to make use of the OS to push the proceedings forward when H was not in a position to give proper instructions.  The OS had no direct information on the facts of the case and appointing him as the guardian ad litem would only operate in W’s favour. 

51.  He had however told the OS as recorded in the OS’s report that it would be in the interest of H to expedite the proceedings and he had no intention of delaying or dragging the matter out.  May be he thought that if he should be appointed as the guardian ad litem, then it would be to the interest of H to have the proceedings expedited.  On the other hand, if the OS were to be appointed, then W could make use of the OS to push the proceedings forward to the disadvantage of H.  He did not explain how W could achieve that.  He also highlighted the importance of the issue of division of assets between H and W in the divorce proceedings.   

52.  He then referred to E and K.  He said H was on good terms with K and they used to dine together a few times per month.  (K had in fact spent a month in Los Angeles keeping H company when he had the brain tumour.)  But H did not like E at all.  But after W had moved out of the vacation home in August 2007, E at the request of H moved from her home in Shanghai to Los Angeles to keep H company.  Initially E was on good terms with him.  She also made input to the strategy in dealing with the divorce proceedings.  However, after she learnt in November 2007 and January 2008 that she was not a beneficiary under the 2^nd will and the magnitude of H’s assets, her attitude towards him turned sour.  The attitude of K to him also took a similar turn.  They then attacked him in various ways and even accused him of desiring to kill H in order to obtain the estate sooner.

53.  He then referred to the incident on 13 March when K brought along a solicitor and counsel to meet H at the hospital.  He took a very hostile view of the lawyers.  He said these lawyers were extremely hostile.  They claimed to be H’s lawyers and brought with them documents of unknown contents for the signature of H.  His description of the incident was quite different from that given by the solicitor.  I have already referred to the solicitor’s letter of 2 May giving the other side of the story.  The solicitor said he was merely explaining to H the purpose of the visit but he was stopped by the roaring of S.

54.  He said K then telephoned W and told her that H had a relapse of the tumour and was in the hospital.  W then came along.  Her solicitor also came a little later.  He regarded the arrival of W as prejudicial to H as he thought it would affect the legal position of H as well as dampening the settlement negotiations (if any) then pursued by W with H.  He did admit that when K asked H whether H wished to see W, H had nodded to the request.  But he said that H had forgotten about the things that W had done to him in the previous year.  W then visited H almost everyday despite their divorce proceedings and he said W would take advantage of H’s precarious condition to advance her litigation tactics against H.

55.  I have already referred to the psychiatrists’ reports on H after they had examined H on 13 March which was arranged at the suggestion of H’s then solicitors.  It is however not known since when H was already in such incapacity.

56.  S further said that since that incident on 13 March, E & K began to have disputes with him.  Despite their previous hatred of W, they changed to befriend W as if the three of them had a united front against him.  He also worried that the three of them might exert undue influence on H.  E and K also alleged that he was harassing the health of H.  They held different views from S on medical instructions to the hospital and the ways for taking care of H.  They quarrelled over these matters.  S was also unhappy about the hospital allowing W to participate in medical decisions for H as that was contrary to the medical powers of attorney executed by H in the US.  As a result of their disagreement, the Guardianship Board is now considering who should be made the guardian and to make medical decisions for H.  S believed that E and K might be eyeing on H’s estate.  He also worried that if E and K were appointed guardians, they would be able to manipulate H and thereupon induce him to sign documents in their favour or even name them as beneficiaries under H’s will.

57.  S doubted the integrity and independence of E and K.  He worried that if E and K should be appointed the committee of H, there would be the risk that they may improperly induce H to change his will or induce him to make inter vivos gifts to them.

58.  S also believed that H’s intent would have been for him to be the guardian ad litem.  He was the only one knowledgeable about all the issues in the divorce proceedings.  He had the best understanding of H’s intentions, strategy and concerns in the divorce proceedings.  He also had the best understanding of H’s financial affairs.  His personal interests perfectly aligned with those of H and there would be no conflict of interest.  He was the biggest beneficiary of the 2^nd will and had every incentive to protect the financial interest of H in the ancillary relief proceedings or settlement negotiation.

59.  In view of these matters, he wanted to be appointed as the committee for H to preserve and freeze H’s assets and for the proper and efficient conduct of the divorce proceedings.  He also undertook not to charge H’s estate any costs for his work and to pay the medical and legal expenses from his own resources.

60.  On the suitability of appointing the OS as guardian ad litem, he thought that such would severely compromise the legal position and bargaining/negotiating power of H as the OS was a stranger to the dispute and would have difficulty to put forward a positive case.  Furthermore, the OS would need time to digest the case and charge remuneration for his work as the committee for H.

61.  Finally, he dealt with the issue of service of the notice of inquiry under Part II of the Ordinance.  He suggested that the notice of inquiry and the relevant papers should be served on his mother , i.e. H’s former wife and his elder brother.  He however suggested that no notice should be served on W as she was seeking ancillary relief against H and he believed that W was not a proper person to be consulted on the inquiry and appointment.  He also suggested that E and K should not be served with the notice of inquiry as they had no entitlement to the estate of H.  He believed that the interest of the two sisters would not be affected by the inquiry.  Nevertheless, Poon J ordered on 23 April that the notice of inquiry and all relevant papers should be served on W, E and K as well as S’s mother and elder brother.

W’s affirmation

62.  W has also filed a lengthy affirmation on 26 May in these proceedings.  She suggested to appoint the OS as the committee.  She said S had interests adverse to that of H and had actual or potential conflicts of interest against H. 

63.  She referred to her 18 years of good and close relationship with H.  They shared common interests and enjoyed life together.  She talked about how S had resumed contact with H and joined them.  She made various accusations against S.  She alleged that S had attempted to exclude his brother T from H’s will by hinting to H that T might not be his son.  She also complained that she had been excluded from the preparation of the 1^st will.

64.  Despite the making of the 1^st will, W said she still devoted her efforts tirelessly to look after H before and after his operation.  She personally attended to his medication, making sure that he was given a proper diet and waking up at night to check on his conditions.

65.  S suspended his study and joined them in late December 2006 in Los Angeles.  Since then, H began to quarrel with her on things big and small.  H’s attitude towards her also changed from bad to worse.  In addition to looking after H, she also had to stand the constant provocation by S.  She had different views from S on many things ranging from health supplement for H to the use of mobile phone by H.  Whilst H’s health was improving, she said she had become weak and was on the edge of a nervous breakdown.  In the end, she decided to move out as she thought H did not treat her as his wife.  She also started divorce proceedings on legal advice.  She had reservations about the contents of the medical powers of attorney and the 2^nd will which did not even allow her to give any direction or instruction on the burial arrangements of H.  She said these documents were executed by H possibly when he learnt of the relapse of the tumour.

66.  She said H did not hate her and had, prior to Christmas of 2007, persuaded her to come home through mutual friends.  She asserted that the differences between her and H were caused by the intervention of S.  She had requested to meet with H face to face but S kept H away.  She was also kept in the dark about H’s medical conditions.

67.  Regarding her visit to H on 13 March in the hospital, she said it was requested for by H through E and K.  H was really happy when she visited him and S was selfish in trying to prevent their meeting each other.  She was in fact barred from seeing H on 15 March.  After her complaint through solicitors, she was allowed to see H again from 29 March onwards.  She then went to the hospital everyday bringing food for H and fed him.  During her visits, H showed affection to her.  She said that was a change of attitude in H.

68.  She blamed the protracted discovery sought by H’s solicitors for delaying the proceedings.  She said H’s solicitors had insisted on inspecting virtually all the documents in her office which consisted of hundreds of box files.  She alleged that it was a fishing exercise driven by S who wanted a protracted discovery that did not relate to the divorce.  S wanted to gather information with a view to sue her for the return of properties to H’s estate.  She questioned the suitability of S to be appointed as the committee or the guardian ad litem.

69.  She alleged some incidents which purportedly showed that S did not have sufficient care and concern for H. 

70.  She concluded by saying that S had induced H to bequeath the bulk of assets to him and S had an interest to ensure that H would not change this either in the 2^nd will or in the divorce proceedings.  She also said that S had played a role in the breakdown of the marriage and had no intent to settle the divorce proceedings.  She accused S of running these proceedings for his own purposes.  She said the dispute amongst the family members also highlighted the need to appoint an impartial person.  She also wished the Court to direct the committee to allow her, E and K to visit H, to have access to his medical information and to take part in giving opinion on his medical treatment.

K’s application, certification of family and property and supporting affirmation

71.  K also applied for appointment as the committee.  She filed an affirmation on 26 May and a certificate of family and property on 30 May.  She spared no effort to disparage S.  She said she had been fond of S and proud of his academic achievements.  However, her opinion on him changed gradually after observing him closely whilst in Los Angeles.  She accused him of not appearing in her mother’s funeral, but showed up a few days later to deal with the 1^st will of H and tried to exclude his brother T from the will.  K more or less repeated the accusations made by S except those which were only privileged to S.  She said she witnessed the arguments between W and S on the taking care of H.

72.  She alleged that H had on several occasions tried to ask W to come home but was stopped by S who said that H’s contacting W would be extremely damaging to the divorce case.  She also alleged that S had told H that S was the attorney of the family and H should listen to him.  S also stopped E and K from contacting W even when H asked them to do so.  After H had come back to Hong Kong, he again expressed a strong desire to see W.

73.  After H was admitted into the hospital on 8 March, S hired overnight helpers to look after him, but did not allow the helpers even to disclose their names or their employer’s identity to E or K.  In her certificate of family and property, K also said the relationship between H and W would not have been under such stress had S not instigated so many arguments between them.  K also allegedly witnessed a constant antagonism between W and S.  She said she had on many occasions asked S not to force H to choose between him or W, but S was adamant.

74.  Finally, she alleged that H’s trust and reliance in S had declined in February 2008.  She referred to an occasion in February when she and E at H’s request took H to his bank.  H then instructed an officer of the bank that if there should be any cheque drawing on his accounting for HK$100,000 or more, the bank should notify E or K.  She said H did so because he was afraid that S might ask him to sign cheques of large amounts and he had become forgetful.  He therefore gave these instructions to his bank.

The bank officer’s evidence

75.  A bank officer was later subpoenaed to give evidence on this.  She referred to a visit by H before the last Chinese New Year in the company of his sisters.  H told the officer that if there should be any cheque drawing on his account for a big sum, the bank should contact the sisters.

S’s reply affirmation

76.  S then filed a lengthy affirmation on 6 June to reply to the affirmations of W and K.  He also spared no effort to rant at E, K and W despite they were his aunts and stepmother.  There was no economy in the use of deprecating terms. 

77.  He accused them of being cold blooded because they did not sign consent forms promptly for particular medical treatment for H.  However, it might well be that the other family members were only considering the medical advice.  He said K and W were thick-skinned in putting forward stories that were contradicted by documents.  He cited as an example the allegation by K that H had wanted to change his will and said that such allegation had no documentary support.  He alleged that E & K wanted to get him out of the picture so that they could settle the divorce proceedings on terms favourable to W but not agreeable to H.

78.  To each accusation made by W and K, he has either an explanation or a denial.  He referred to some of the accusations as most childish and naive.  He also said K and W were trying to stir up a dispute between him and his brother.

79.  On the instruction by H to his bank, he said it was done upon his suggestion to Hto prevent misappropriation by W.  However, he did not explain why he had found it necessary to make the suggestion to H after W had left for more than a year.  Furthermore, H only instructed his bank to contact E and K in case of problem.  H did not tell the bank to contact S despite having introduced S to a more senior bank staff in 2004.

80.  On the protracted discovery, S put the blame on W for the removal of documents by her lawyer in August 2007 from the matrimonial home.  He said that was a calculated move to maximize the ancillary relief she might obtain.  Her conduct struck him as cold-blooded, calculated and calm.  He also referred to the counterclaim by H for return of trust properties.  He said the lengthy discovery was in the best interest of H.  He also blamed W for having deserted H when H was ill.

81.  Finally, he revealed that E had allegedly assaulted him on 11 April this year occasioning actual bodily harm to him and E was facing a criminal charge for this.

82.  Just like what W and K had said about him, he also said that W and K were more concerned about H’s money than his health.

83.  In these affirmations and certificates, no body made any attempt to conceal their bitterness against their opponents.  One wonders why they would be so bitter about their opponents if they were only seeking to protect the interest and wellbeing of their beloved H.  The saga continues. 

The report of the OS on the committee

84.  On 6 June, the OS filed another report which was sought by me on whether the OS should be appointed as the committee.  The OS pointed out in the report that both H and W wanted to expedite the proceedings.  However, it appeared that the proceedings would not be settled.  If the OS should be appointed as the committee, the proceedings will be unnecessarily delayed with extra legal costs.  The appointment of the OS may also jeopardize the hearing days fixed on 3to 11 September this year.

85.  The OS also pointed out that H had much trust in S as shown in his affirmation filed on 1 February 2008 in relation to discovery.  H had also executed medical powers of attorney and the 2^nd will in the US in favour of S.  S had paid and offered to continue to pay the medical bills and legal costs of H from his own pocket.  S had received US$3 million from H in 2006.  He has the knowledge of the finance of H and did not need to start from scratch if appointed and the hearing dates could be kept.  The OS also pointed out that if the guardian ad litem should fail to act in the best interest of the mentally incapacitated, the solicitor of the incapacitated, as an officer of the Court, has a duty to bring the matter to the Court and the guardian ad litem may be replaced.  Though S is the major beneficiary of the 2^nd will, the OS did not see much of a conflict of interest between him and H as H would also strive for his own benefit in the ancillary proceedings.  The OS therefore concluded that appointing the OS as the committee may not serve the best interest of H.

Further affirmations

86.  On 10 June, W filed a further affirmation giving her side of the story on the delay of her consent on certain medical treatment for H.

87.  There was on 12 June one more incident.  On that day, the neurosurgeon of H arranged a meeting with the family members to discuss whether a particular surgery should be carried out for H.  S did not appear in that meeting.  A complaint was then made against him in the next hearing before me.  He then explained his absence by yet another affirmation filed on 23 June.

Report of the Director of Social Welfare

88.  Finally, I am also referred to a report filed by the Director of Social Welfare with the Guardianship Board on 20 June.  The report was compiled to assist the Board’s consideration on who should be appointed the guardian of H. 

89.  The responsible officer of the Social Welfare Department had interviewed S, T, E, K, W, W’s elder brother, the neurosurgeon, the treating doctor, the nursing staff of the hospital and H’s domestic helper.  Apart from interviews, there were also subsequent telephone discussions and a family meeting with E, K, W, S and the neurosurgeon at the hospital.

90.  The officer reported that as soon as H was diagnosed with tumour, W was his main carer.  Before the surgery, K also took a month’s vacation to assist W.  Since early 2007, S also suspended his study at the university to take care of H.  However, W and S could not relate satisfactorily with each other.  They had arguments on several occasions mainly on different views of how best to treat H.  There was then the divorce proceedings and the departure of W.

91.  Apart from the alleged assault case on 11 April this year as revealed by S, the report referred to another assault case against E for allegedly slapping S on 27 March.  It was over a petty argument of whether S should lean on H’s bed which might prevent H from having a good sleep.

92.  T, when being interviewed by the officer, sighed that the dispute amongst the family members was all because of money. 

93.  S had produced to the officer the medical powers of attorney to show the faith and trust of H in him.  The treating doctor expressed to the officer his difficulty in obtaining a consensus from the family members.  The family meeting at the hospital with the neurosurgeon revealed to the officer that the family members had different views on the risk to be taken by H in relation to certain medicine and surgery.  It appeared that S preferred the more aggressive methods whilst the others were more conservative.

94.  The officer said S impressed her to be a capable and resourceful young adult with good knowledge and resources.  S wished to be appointed as he believed that H wished to have him as the agent.  He also worried that H’s health might be jeopardized by the other family members.  The doctors and nursing staff of the hospital said S was cooperative and had followed medical advice.  E, K and W however opposed S on the question of integrity.

95.  In her recommendation to the Guardianship Board, the officer said:

   “In my contacts with the family members, I find they are all well educated and fully capable of understanding the nature, intention and consequence of each medical decision on [H].  I believe they all love [H] but the problem is that due to different life values, orientation and interpretation, they have different opinions on what are the best for [H] or what they believe [H] would want.  The stress of each and every family member in taking care of a gravely ill member is understandable.  The 2 advance directives did indicate that [H] trusted Andy to act on his behalf.  Yet, I cannot ignore the contribution and involvement of the other family members have on [H] over the recent 2 yeas.  I incline to think that the other family members should be given the role to play.

57.  In view of the unresolved difference of opinions between the family members over the medical treatment plan on [H], it is advisable to have a neutral, independent party to take up the guardian’s role.”

The officer recommended the Director of Social Welfare to be appointed as the guardian.

ANALYSIS AND DECISION

Committee

96.  The starting point for consideration must be section 10A of the Mental Health Ordinance, Cap.136.  Section 10A(1) and (2), insofar as they are relevant, provide that:

“(1)  The Court may, with respect to the property and affairs of a mentally incapacitated person, do or secure the doing of all such things as appear necessary or expedient-

(a)    for the maintenance or other benefit of that person;

…

(d) otherwise for administering the mentally incapacitated person’s property and affairs.

(2)    In the performance of the functions under subsection (1) the Court shall have regard-

(a)    as a paramount consideration, to the requirements of the mentally incapacitated person;

…”

97.  Under section 11, the Court may appoint a committee of the estate of the incapacitated person and the OS may be so appointed.  The Court may also make such order as to the remuneration of the committee out of such person’s estate and as to the giving of security by the committee.

98.  Regarding the suitable candidate for appointment, the OS has referred me to para. 4-005 of Haywood and Massey Court of Protection Practice where an order of preference as established by the authorities has been set out.  The person on top of the list is the patient’s spouse who has the strongest claim to be appointed.  The next in line is any other relative who takes a personal interest in the patient’s affairs.  The third one is an independent person such as a friend of the patient or an officer of the local authority.

99.  Para. 4-006 also sets out a number of criteria as established by the authorities that should be taken into account.  They include the size and complexity of the estate, the patient’s own wishes and feelings, the ability of the patient to interact with the committee, love devotion and affection between the committee and patient, the care regime of the patient and remuneration required by the committee.

100.  Counsel for W referred me to RSH, HCMP 592/2006 on the appointment of a committee.  Lam J observed there that the Court should adopt a broad-brush approach without being embroiled in factual issues.  I also agree with counsel that it is not my task to verify the allegations made by the parties.  But I should not just write them off.  I should look at them and consider if they disclose a risk for appointing the particular candidate or otherwise make the appointment of that candidate inappropriate. 

101.  From the two medical powers of attorney, the 2^nd will and the fact that S was closely involved with H’s conduct of the divorce proceedings, it is clear that H has a lot of trust in reliance on S.  If there is nothing else making him unsuitable, I think S should be appointed.  However, there are many allegations by him against W, E and K and cross-allegations by W and K against him.  Some of these allegations and cross-allegations are quite nasty.  As pointed out by the OS, they are easy to make but difficult to rebut.  S also retorted in the most deprecating terms.  These allegations and cross-allegations, even unproven, at least show the bitterness between the two camps.  Unfortunately, the saga has also engaged the criminal law.

102.  Counsel for S further said that I should not rely on the allegations of W and K that H wished to see W.  Counsel submitted that after H had become mentally incompetent, he would have eaten food from anybody and held anybody’s hand including the nurses and the maids, therefore W’s observations on H’s behaviour towards her were insignificant.  There is however no evidence to back up counsel’s assertion.

103.  Counsel further submitted that the visits by S had significantly weakened H’s bargaining power in potential negotiation as all H’s health vulnerabilities had been exposed to W.  Counsel asserted that H will not be able to obtain favourable settlement terms from W.  I do not know whether H’s bargaining power in the potential negotiation would be weakened by W’s visits to him.  Even if it would, I cannot tell whether it would be a significant disadvantage.  In any case, if W wanted to learn about the health conditions of H, there are different ways and means.  I do not think the Court can bar all access by all relatives to H save and except S.  That will do more harm than good to H.

104.  On the evidence of S, his aunt K used to despise W.  But K is now taking a similar stance as W.  Therefore counsel for S made additional submissions to explain why K should have so conducted herself.  Counsel submitted that K made allegations against S for four reasons.  First, K has an ulterior motive to wrongfully invalidate H’s will or to assist W in exchange for kick-backs from W.  Second, K colluded with W in making similar allegations against S and therefore her allegations against S should be ignored.  Third, K and her lawyer have lied as reflected by the records.  Four, the allegations by K and W are irrelevant.

105.  For the first reason, it is a serious allegation against W and K based not on evidence but on a tenuous inference that I am asked to draw.  I do not think I should do so.

106.  For the second reason, counsel has identified 10 odd matters and allegations made by both W and K.  Counsel thus further submitted that there was collusion between them.  The order of the allegations in W’s lengthy affirmation was not the same as that in K’s affirmation and certificate of family and property.  K’s allegations also split between her affirmation and her certificate.  K’s explanation for the appearance of similar allegations was that the events in question took place in the presence of W and K or there had been discussed between them.  Either way, there was no collusion

107.  For the third reason, counsel has already accepted in unequivocal terms that the documents that K’s lawyer wanted H to execute was a document to instruct K’s lawyer to act for H in the divorce proceedings.  The dispute was over the behaviour of S and K’s solicitor and counsel.  That was a matter that had taken place prior to the arrival of H’s previous solicitors.  On this issue, each side has presented a different story.  I am not going to find that K’s lawyer has lied on the strength of the conflicting stories.  It is regrettable that this serious allegation against K’s lawyer should have been made when there is no evidence or undisputed evidence to support it.  Regarding the allegation that K has lied as shown on the records, I agreed that there may be inaccuracies in her evidence, but I do not think I have sufficient material to justify a finding that she has lied and not that she was just too eager to come to conclusions against S that she might have relied on unreliable information.

108.  For the fourth reason, I think it is plainly wrong.  If the allegations by W and K against S are true, I think they are indeed relevant on the suitability of S for being appointed as the committee or as the guardian ad litem.  Some of the allegations say that S had put his interest ahead of that of H.

109.  On the whole, I do not think on the basis of the materials present, I can find that W and K are colluding.

110.  I would also consider some undisputed matters.  It is the evidence of S that W and H had been living in harmony even after he had joined them when he was 15 years old.  W herself also said that they shared the same interests and enjoyed life together.  The report of the Director of Social Welfare said that after the diagnosis of brain tumour, W was the main carer for H.  Trouble between H and W only started after the diagnosis of H’s brain tumour and his making of the 1^st will.  Their relationship worsened further after S had suspended his study and joined the household in late 2006 or early 2007.

111.  The relationship between W and H has also lasted for 18 years.  The breaking up appears to be caused by the bequeaths in the 1^st will and the joining of the household by S in late 2006 or early 2007.  There did not appear to be any other cause which would have destroyed their care and affection for each other.

112.  Though I am not going to verify any allegation, I do not think I can completely write off the evidence of K that H had all along wanted to meet with W and the evidence of W that H persuaded her to return home through mutual friends and how H behaved and reacted when she visited him in the hospital since 13 March.

113.  For E and K, their bonds with H are still there.  Though they did not have the same father, the father of E and K passed away when they were young and they grew up under the guidance of H.  S also said that K used to dine with H a few times every month.  After the diagnosis of the tumour, K also took a month’s vacation to take care of H.  After W had left home, E also went from Shanghai to Los Angeles to look after H.  After H’s return to Hong Kong, he had taken E and K to his bank and authorized them to deal with his bank on queries over his big cheques.  This demonstrates his trust in E and K as well.  After he was hospitalized on 8 March, E and K visited him daily.  All these show that there are strong bonds between E and K on the one hand and H on the other. They still have a close relationship.

114.  S no doubt is very close to H and enjoys his trust and reliance.  However, if I should appoint S as the committee, it is likely that E, K and W will have difficulty in seeing to H.  There are already accusations against S for his attempts to secure exclusivity to the medical information of H.  He has prohibited the night-time helper from disclosing her name or her employer’s identity to E and K.  The bitterness and hatred between them is tremendous.  My worry of difficulty of access is also strengthened by the submissions of counsel for S.  Counsel argued against access by W to H to protect H’s financial interest in the divorce proceedings.  Counsel also argued that there was collusion between W and K.

115.  I do not want to exclude E, K or W from access to H.  I think they should continue to rally around him and support and take care of him.  I think H would also wish to continue to have their support and care.  It would be against his wish and feeling to cut them off from him.  Though I have been told that H is already in a coma, it has also been suggested by reference to medical opinion that he may wake up again.

116.  Furthermore, in the light of S’s concern that W, E and K are merely going after H’s assets and the many allegations against S that he had prevailed over H on the contents of the wills, I also worry that the appointment of S may carry a risk that if H should regain his consciousness, H’s will to make any change to the distribution of his assets inter vivos and/or by will may be overborne by S and H’s voice may not be heard.

117.  For these reasons, I would not want to appoint S as the committee for H.  For the same reasons, I also would not appoint K as I think S should continue to have unfettered access to H.  However, if the OS should be appointed the committee, all relatives and in particular E, K, W and S can continue to rally around H, to take care of him and to give him support.

118.  Just on the appointment as the committee for H, I think the OS also does not find any difficulty with it.  I therefore appoint the OS as the committee under section 11 of the Ordinance.  If the OS would like to apply for any specific power including those for managing H’s assets, I am happy to consider his application to be made ex parte by letter.

119.  The OS as the committee may have the need to enquire and obtain information from E and/or K and/or S on H’s affairs in particular his financial affairs, but the OS is not required to share any such information obtained from any quarter with anyone.  The OS also does not have to give anyone of them any notice or prior notice of any act or step that the OS may take in discharge of his duty as the committee of H.  I think these matters are obvious.  I spell them out just to avoid any unnecessary trouble for the OS.

Guardian Ad Litem

120.  I consider K’s application first.  Her evidence showed that she was on W’s side on the cause of divorce.  She is also quite keen on settling the proceedings with W.  She may therefore compromise the view of H.  I do not think she is suitable for this appointment.

121.  For S, he no doubt has the trust and reliance of H and he believed that H would want him to be the guardian.  He said he knew H’s view on how the divorce proceedings should be conducted.  He said he would conduct the proceedings in a way that will provide the best safeguard to H’s interest in particular in the ancillary relief claim.  He was not precluded from the idea of settling that claim.  He would not delay the matter.  He also said he would not be unnecessarily hostile to W just to irritate her.

122.  From the affirmations and the Certificate, S’s attention seems to be focused more on the ancillary relief claim than on the petition and cross-petition.  He is no doubt interested in the outcome of the ancillary relief claim, but one may say that it is common in personal injuries actions to have a plaintiff acting as the next friend of a co-plaintiff.  There is however some difference here.  S is not a party to the divorce proceedings, but is the cause of these proceedings.  I say this without any finding of fault on any party.  Rightly or wrongly, he happened to be the cause of the breaking up of the marriage between H and W. 

123.  S is also not a party to the ancillary relief claim, but he will surely be affected by it as he is the beneficiary to all of H’s assets save a liquidated sum of US$1 million.  So if W should gain more, S will likely to stand to lose more ultimately.

124.  Though H is defending the petition and cross-petitioning as well, he does not appear to have any deep-seated hatred for W.  The relationship appears to be the contrary.  However S has harboured a deep-seated hatred and bitterness for W.  The difference between H and S makes S less than suitable as the guardian ad litem as he may consciously or unconsciously fight his own battle against W.

125.  Furthermore, if S should be appointed, there is no real likelihood that he may consult and seek the views of E and K on how H would conduct the proceedings.  S thinks that he has already had all the information. 

126.  There are also allegations that S is driving the proceedings and is having a protracted discovery for an ulterior purpose.  These allegations make me feel uncomfortable in appointing S. 

127.  The person to be appointed should conduct the proceedings in a rational way and to do so in line with the will of H as may be ascertained from those around him who are knowledgeable on the facts of the case.

128.  S opposes the OS from being appointed as the guardian ad litem on the ground that the OS will need time to study the case.  Now that H is in a coma, I do not think the expeditious progress or otherwise of the proceedings will make much different to him.  For W, she has asked for the OS to be appointed.  She should know that appointing the OS will entail delay.  On the question of costs, H has disclosed a total of HK$400 million worth of assets, this question therefore does not assume a lot of prominence in this case.

129.  Counsel for S also submitted that if the OS should be appointed and be allowed to communicate with K, information on H’s defence of the proceedings will likely to be leaked out to W through K as W and K are in collusion.  Such information include the strategy of litigation and negotiation.  Counsel further submitted that W’s adversarial acts against H could also find their way into H’s legal team through K as if K were a Trojan Horse.  If these submissions should be taken seriously, their making is already a sufficient warning to the OS on the need to be careful with communication with E & K.

130.  The OS at the hearing also expressed a worry that he will not be able to prosecute the cross-petition.  I think the position of the OS in conducting the cross-petition is no worse than that of S if S were to be appointed.  Whatever that is known to S, I am sure he will be happy to share it with the OS.  If he is so dear to his father, and I am sure he is, he will not hesitate in testifying for H in the cross-petition.  The OS can also seek additional information from E & K on matters of fact relevant to the petition and the cross-petition.

131.  Furthermore, the OS can enquire from H’s relatives including E, K and S on whether H would like to settle the proceedings with W or to conclude the proceedings expeditiously by relying on the ground of one year separation.  If the result of the enquiry should favour a short-cut, the cross-petition will also be out of the way.

132.  On the ancillary relief claim, counsel to be engaged for H will surely advise whether it should be fought out or settled, and if to be settled, on what reasonable terms.

133.  For the above reasons, I would also appoint the OS as the guardian ad litem for H.

Costs

134.  Since both K and S have lost their applications, I will not order any costs in relation to their applications.  W appeared in these proceedings just to assist the Court.  I do not think I should make any costs order in relation to her appearance.  Regarding the OS, I make a costs order nisi that he should be given the costs of all the matters herein on an indemnity basis and all such costs shall be paid from the estate of H.

135.  This decision is of some importance for applications for appointment as a committee and as guardian ad litem.  Since the parties have no objection to the publication of this judgment, I therefore grant leave for it to be published.