LAU CHI YING v. LAU WAI KEUNG

HCAP 2/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 2 OF 2009

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BETWEEN

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JUDGMENT

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1.  The Plaintiff challenges the validity of her mother’s will, under which the Defendant is the sole beneficiary of the HK assets.

UNDISPUTED FACTS

2.  Madam LEE Sun (“the Deceased”) died on 18 February 2008, aged 87.  She was survived by 5 daughters and 4 sons amongst whom were the Plaintiff (4^th child, daughter) and the Defendant (youngest, son).  Her husband (“the Father”) had pre-deceased her, leaving 2 industrial properties (“the Wong King Property” and “the Lead On Property”).  She was the administratrix of his estate.   The Deceased left assets to the tune of about $3,200,000 cash, her share in the Father’s estate and some cash and properties in the Mainland.  Of the cash, about $1,000,000 was from the estate of her deceased daughter Pang Ying (“the deceased daughter”).

3.  The Deceased spoke Hakka.  She was illiterate, being able only to sign her name and write symbols.  Being a traditional person, the Deceased expressed no wish to make a will during her lifetime.

4.  Since about 2000, the Deceased had lived alone at a property in San Po Kong Mansion (“the SPK Property”).  Madam Leung Fuk Ying (“Madam Leung”), who had known the Deceased since the former’s childhood, lived in the same building.

5.  On 9 July 2005, the Deceased made a report of alleged burglary to the police claiming loss of 3 specific valuable items (“the alleged burglary”). No arrest had been made nor was any stolen property recovered.

6.  Around 2005 to 2007, the Deceased moved to live at the rooftop of Wong King Building with some Hakka clansmen.  The living environment was poor.

7.  In about 2007 when the rooftop hut at the Wong King Property was demolished, she moved back to the SPK Property and resumed contact with Madam Leung.

8.  The Deceased had been admitted to hospital 3 times:

(i)  The 2006 Admission: admitted on 28.12.2006 for vomitting blood and discharged against medical advice on the following day.  She did not undergo mini-mental state examination (“MMSE”) as recommended.  The medical report stated “confusion at night, poor memory”.

(ii)   The 2007 Admission: admitted on 29.11.2007 because of a fall; discharged after 7 days on 5.12.2007.  The medical report stated “conscious and alert”.  CT report showed cerebral atrophy.  One Doctor Chau reported that:

“Madam Lee … could follow commands on examination. Throughout the hospitalization, she was repeatedly recorded ‘conscious and alert’ and was recorded ‘emotionally stable’ on 4 December 2007.

From the record of the second admission, we could not find any evidence of abnormal mental state.  From the record of the first admission, our observation and assessment was limited by the very short stay in the hospital.”

After her discharge from hospital, the Deceased had resided at an elderly home until her death.

(iii)   The 2008 Admission: admitted on 18.2.2008 for pneumonia and passed away on the same day.  One Doctor Lam’s report stated as follows:

“Madam Lee was first presented to me on 18^th February, 2008 at 04:54 because of respiratory failure and certified dead on the same day 18:36.

The details of her past medical history were stated in my previous medical report. In respect of her last admission, in which I was the medical officer-in-charge, she was confused and could not give coherent speech or communicate with our medical staff efficiently, which could not be solely explained by the language barrier. She showed significant deficits in the attention, memory and problem-solving domains, though proper memory test was not performed. Besides, she did not appear to be suffering from delusion from the limited information given by Madam Lee. The global confusional state was probably due to her acute medical illness, though the possibility of underlying dementia could not be ruled out.” (underline added)

9.  In between the first 2 Admissions, 2 important things happened.  Firstly, on 3.5.2007, the daughters issued a writ in HCA892/2007 (“the Writ”) against the Deceased and the 4 sons.  It asked the Deceased to give an account of the 2 industrial properties of the Father.  The Writ was registered at the Land Registry but was never served.  The Deceased discovered it in about September / October 2007 upon a purported sale of the Lead On Property to the Defendant and his brother Wai Fan, and the sale had to be cancelled. 

10.  Secondly, the Deceased purportedly made the subject English will dated 6.11.2007 (“the Will”) at the age of 86.  It provided that all her real and personal assets in Hong Kong should be given to the Defendant absolutely and that he was to be appointed as the sole executor.  The Will was purportedly witnessed by a solicitor Mr Tam and a legal executive Ms Flora Li, both of Messrs. John Ku, Tam & Ho (“JKTH”).

11.  At the post-funeral lunch of the Deceased held on 7.3.2008, the Defendant disclosed the existence of the Will for the first time to his sister Fook Ying, who in turn informed other siblings.

12.  At a meeting held on 8.3.2008 attended by the 5 daughters, the Defendant and another son Wai Ming (“the Meeting”), a proposal was made by the Defendant and accepted by the daughters (i) to disregard the Will and divide all assets of the Deceased into 9 portions for distribution to all siblings; and (ii) to distribute $1,000,000 to the daughters in return for a waiver of action against him for rent of the Lead On Property.  No agreement was signed at a solicitors’ firm as agreed because the Defendant reneged on 18^th March.

13.  The Defendant had obtained the following benefits from the parents during their lifetime:

(i)  The Father acted as a guarantor for a debt of $5,000,000 in respect of the Defendant’s business.

(ii)   In 2005, the Defendant was appointed as an attorney of the Deceased in the sale of a property on 8/F Lead On Building (not the Lead On Property referred to above) and received ¼ proceeds of sale in the sum of $900,000.  (¾ went to his brothers.)

(iii)  In 2007, the Deceased made him a joint tenant of the SPK Property.

(iv)  The Deceased gave him over $1,000,000.  (The daughters said that $700,000 was a loan but the Defendant said it was a gift.)

(v)   Occupying the Lead On Property rent free (even after the Father’s death) for 14 years.

(vi)  Obtaining all the jewellery upon closing the Deceased’s deposit box.

THE PLAINTIFF’S CASE

14.  The Plaintiff puts the Defendant to strict proof of the due execution of the Will, since the Deceased did not understand Cantonese.  The Plaintiff also challenges her testamentary capacity and her knowledge and approval of the contents of the Will.  She alleges that the Deceased had had mental problem since about 2005.  She questioned the intention of the Deceased to make a will and the reason for giving almost the entire estate to the Defendant.  She alleged that the Defendant had been luring the Deceased into giving him her assets and making of the Will was part of the exercise.

THE DEFENDANT’S CASE

15.  The Defendant claimed that he was loved by his mother.  The Deceased was prompted by her anger for the daughters suing her and a bank manager’s suggestion to make a will.   The Defendant asked what she wanted to do with her 2 properties in Hong Kong, whereupon the Defendant said that they would be given to him as well. 

16.  The Deceased had no mental problem.  At the time of execution of the Will the Deceased was accompanied by the Defendant, Wai Fan and Mr Lee Yuen (cousin of the Deceased).  The Will was duly executed after Ms Flora Li and Mr Tam had explained it twice to the Deceased in Cantonese and she understood before executing it.  He denied that the Deceased lacked testamentary capacity.

17.  The Defendant also denied luring away the Deceased’s assets. 

THE ISSUES

18.  The following are in issue: 

A.   Whether the Deceased understood Cantonese;

B.   Whether the Deceased had the intention to make the Will;

C.   Whether the Deceased had dementia or other mental problem;

D.   What happened in relation to the preparation and execution of the Will;

E.  Whether the Deceased had testamentary capacity;

F.  Whether the Will was duly executed;

G.   Whether the Deceased knew and approved of the contents of the Will.

H.   Whether the estate of the deceased daughter fell within the estate of the Deceased.

19.  I will summarize my findings in Section I.

THE WITNESSES AND THEIR CREDIBILITY

20.  On the Plaintiff’s side, the witnesses were the Plaintiff, her sister Miu Ying (a trusted daughter), the neighbour Madam Leung, Mr Willy Lam (solicitor for the Plaintiff) and Doctor Lo.  On the Defendant’s side were the Defendant, Ms Flora Li, Mr Lee Yuen and Doctor Yu. 

21.  Each party has reason to boost her/his case.  The Plaintiff’s camp (comprising the sisters) has made various accusations to challenge the Defendant’s credibility.  For example, they alleged that it was his idea to remove the Deceased from hospital in 2006 against medical advice; that he took $2,000,000 from his mother through Mr Lee Yuen; and that he owed the family fabric company money. Some of them I shall find to be not established.  As some of the facts were solely within the Defendant’s knowledge, the Plaintiff was unable to make the right inference without testing his evidence in cross-examination.

22.  I disregard the Plaintiff’s evidence of what her brother Wai Pang told her.  It is not safe to rely on the hearsay evidence from Wai Pang to challenge the integrity of the Defendant and Wai Fan without his being cross-examined in view of this siblings’ dispute. 

23.  Bearing in mind the matters in the 2 preceding paragraphs, I find the Plaintiff to be a generally credible witness.  Unless expressly rejected, I accept her evidence.

24.  Miu Ying is a straight-forward, objective and clear-minded witness. I find her to be credible and helpful.  I accept her evidence.  Again, unless expressly rejected, I accept her evidence.

25.  Madam Leung is an independent witness who has no interest in this case.  For some years she had been voluntarily looking after the Deceased.  I find her to be a credible witness and I accept her evidence.

26.  Mr Lam’s evidence is virtually unchallenged and I accept it. 

27.  Ms Flora Li left JKTH in 2008.  She did not draft her own witness statement and it was reasonable for her to leave it to the Defendant’s legal representatives to decide which part of her evidence was material to the case. She had tried to tell the Defendant’s solicitors about errors in her witness statement.  Even so, there are material inconsistencies between her oral evidence and her witness statements.

28.  With regard to the Defendant, I will not rely on his reneging of the “agreement” with the daughters at the Meeting as creating a negative impact on his credibility.  Nor will I treat that as an “admission” that the Will was not valid.  After all, not all the siblings were present at the Meeting and the parties were in the course of negotiation.  However, there was material non-disclosure by the Defendant and material inconsistencies between his and Ms Flora Li’s evidence that cast doubt on his credibility.  I will give details under various Sections below. 

29.  In respect of Mr Lee Yuen, I give allowance for the fact that he was aged 73 and not very articulate, e.g. when he explained the flow of funds regarding the $2,000,000.  Even so, there are aspects of his evidence which is self contradictory or inherently improbable.  He agreed under cross-examination that the Deceased did not understand the contents of the Will.  In a telephone conversation with the Plaintiff about a year after the Deceased’s death, he was evasive and denied having knowledge of the Will when, on his evidence, he was present during its execution.  His explanation as to why he did not tell the truth was illogical and he was not answering questions put to him in a direct manner.  He claimed to know Ms Flora Li because every time the Deceased dealt with the Father’s estate, Mr Lee Yuen had gone with her to the solicitor’s office (para 21 of his witness statement).  Yet indisputably, application for letters of administration of the Father’s estate was dealt with by Messrs Wat & Co and Ms Flora Li had never worked there. 

30.  Ms Flora Li, Mr Lee Yuen and the Defendant have all retracted their evidence that Mr Lee Yuen acted as the interpreter when the Deceased made the Will.  This could not be just a coincidence when one of the core issues was the Deceased’s ability to understand Cantonese and due execution. Contrast this with what the Defendant told the 2 doctors - that Mr Lee Yuen “interpreted the dialect” (para 18(j) of the Joint Medical Report.) 

31.  I do not find the Defendant, Ms Flora Li and Mr Lee Yuen to be credible or reliable witnesses.   Unless expressly stated otherwise, I reject their evidence. 

32.  Dr Lo and Dr Yu (collectively “the 2 Doctors”) have tried their best to assist the Court.  As explained in Section C below, I prefer the approach of Doctor Yu for the Defendant. 

33.  I accept the contents of 2 sets of transcripts as truthful records subject to the corrections by the Hakka interpreter to the transcript of the telephone conversation between the plaintiff and Mr Lee Yuen (B319).

A.  WHETHER THE DECEASED UNDERSTOOD CANTONESE

34.  The children (except the eldest son Wai Pang) used Cantonese with the Deceased whilst the Deceased used Hakka.  The Plaintiff’s camp suggested that she could only understand simple Cantonese for daily conversation (such as used in the market) but not otherwise when things got complicated.  She confined herself to the Hakka community. 

35.  The Defendant and Lee Yuen insisted that the Deceased could speak Cantonese with Hakka accent.

36.  I find it hard to accept that having lived in Hong Kong for about 67 years and having run a family business in Hong Kong, the Deceased had not picked up Cantonese from daily life.  Although there was support for the Plaintiff’s version in that at a critical moment of her health, the Deceased used Hakka in the 2006 & 2007 Admissions, there was nothing to show that the hospital staff could not understand her.  The Deceased was able to ask for discharge from hospital.  She was able to ask for analgesics.

37.  I take into special account 2 legal matters.  The first occurred in 29.1.2007 when the Deceased made the Defendant a joint tenant of the SPK Property.  The assignment stated there was a consideration of $450,000 for the transaction, a figure suggested by Ms Flora Li.  The assignment did not contain an interpretation clause.  Ms Flora Li could not tell whether the consideration had been paid but the Defendant admitted that it never was.  He agreed that the idea of putting down the consideration was for “tax” purpose. There was no proof that the Deceased could understand that idea and I doubt if she did.  This legal matter does not assist in resolving Issue A.

38.  The other matter was the Writ.  According to the Defendant, it was he who explained what happened to the Deceased in Cantonese.  When the Deceased learned that the daughters sued her, she was very angry and that prompted her to make the Will.  She called up Miu Ying, for explanation.  According to Miu Ying, after her explanation in Cantonese, the Deceased was satisfied that it was to create an incumbrance (釘契), to safeguard her properties from being disposed of without the daughters’ knowledge and there was no breakdown of relationship.  Whichever side was telling the truth, the Deceased was capable of understanding something beyond ordinary daily occurrences explained to her in Cantonese.  Madam Leung had also testified that the Deceased could barely understand Cantonese.

39.  Whether one described the Deceased as speaking Hakka with Cantonese accent or Cantonese with Hakka accent, I find that the Deceased was capable of understanding some matters explained to her in Cantonese and could communicate with Cantonese speaking persons. 

40.  The extent of her comprehension of Cantonese was unknown.  It was the Defendant’s case that Mr Lee Yuen accompanied her for the processing of the Father’s letters of administration, the preparation of a power of attorney (which led to sale of 8/F Lead On Building) and the execution of the Will (as an intended witness).  Mr Lee Yuen and the Defendant claimed that the Deceased was clear about everything even before going to a solicitor’s firm and Mr Lee Yuen was not required to repeat what Ms Flora Li said.  However, whilst stating that Mr Lee Yuen had no role to play at the solicitors’ firm, the Defendant also said that Mr Lee Yuen could be said to be repeating contents on his own volition to the Deceased after listening to all that was said (presumably by Ms Flora Li).

41.  I find it hard to accept that the Deceased would have involved Mr Lee Yuen when he had no apparent interest in any of the legal transactions.  Why would Mr Lee Yuen need to emphasize in his witness statement that the Deceased trusted him and required his attendance on all important matters?  He said that he went to the solicitor’s firm on all occasions when the Deceased dealt with administration matters of the Father’s estate.  He would repeat all contents to the Deceased before the Deceased dared to sign (para 21 of his witness statement). 

42.  I find that though the Deceased could understand Cantonese, she still required Hakka translation from Mr Lee Yuen as a safety measure. 

B.  WHETHER THE DECEASED HAD THE INTENTION TO MAKE A WILL

43.  According to the Plaintiff, the Deceased had mentioned during her lifetime that the assets should be evenly distributed among the children.  The transcript of the Meeting showed that the Defendant was aware of this.

44.  According to the Plaintiff and Miu Ying, the Deceased did not like to talk about death or the making of a will.  She was afraid of being killed after a will was made.  She loved to use money to control others.  She thought she could use money to attract others to her and that was how the Defendant got closer to her.  She would not distribute her husband’s estate and would not mind how the children would distribute hers after her death.  Being illiterate, of Hakka origin and holding traditional Chinese belief, she disliked the idea of making a will or plan about her death.  That was shared by her husband who died without leaving a will.  The Plaintiff claims that there was no good reason why the Deceased would have given almost the entire estate to the Defendant especially since he had no male offspring while his 2 elder brothers had.

45.  The Plaintiff also referred to the history of building up of the family business, the bad relationship of the brothers with the Deceased and hence the lack of reason for the Deceased’s disposition only in favour of the Defendant. The Plaintiff’s case was that the Defendant had over the years been luring the Deceased into giving him her assets. 

46.  The Defendant’s version was that the Deceased loved him.  The Deceased favoured sons over daughters.  She was antagonized by the daughters’ issuing of the Writ.  Admittedly, prompted by the Defendant’s suggestion, the Deceased was afraid that the daughters would also freeze her bank accounts.  She wanted to add the Defendant’s name to her bank accounts so that he could withdraw the monies after her death.  She was told by a bank manager that only a will could achieve that end.  So she decided to make a will.  The Defendant then asked her what she wanted to do with the 2 properties in Hong Kong, whereupon the Deceased said that they would be given to the Defendant as well.

47.  There was support for the Defendant’s version as disclosed in the transcript of the conversation between Mr Lee Yuen and the Plaintiff before this action was commenced.  Mr Lee Yuen described the Defendant as filial, caring and spending time with the Deceased whereas the daughters did not visit her.  The Deceased was described as of strong character and decisive. 

48.  It was also Ms Flora Li’s evidence that when asked why she wanted to give the assets to the Defendant, the Deceased said that it was because the daughters sued her. 

49.  I also find some support in the daughters’ version.  The Plaintiff said that the Writ was issued because the daughters were afraid that the Deceased was muddled and would lose the properties.  Yet they could not talk her out (但阿媽我地唔話得佢); she would not be able to understand even if explanations were made to the Deceased. 

50.  I have considered also the relationship between the Deceased and the Defendant.  It was not bad.  For the 2006 Admission, the Defendant visited her at 4 a.m.  He was the one who fetched her out of hospital.  He had lived with her for several weeks at the San Po Kong Property and the transcript of the Meeting showed that the Deceased was very happy about it.  He kept visiting her despite having to work in the Mainland for 4 days a week and had his own family.

51.  I have taken into account each party’s view on the likelihood of the Deceased making a will which was effectively historical background.  I accept the daughters’ version as to why the Deceased’s did not make a will in the past.  Considering also the proximity in time between the Deceased’s discovery of the Writ and the making of the Will, I accept the Defendant’s version of what prompted the Deceased to change her mind and made a will. 

52.  In deciding whether the Defendant had been luring the Deceased, I have taken into account the following matters:

(i)  In about 2001, the Deceased allegedly refused to lend $200,000 to the Defendant and the latter was angry with her. Why would the Deceased be content to make him a joint tenant in 2005?

(ii)   This creation of the joint tenancy to the SPK Property was to the knowledge of the daughters, as admitted by Miu Ying.  No objection had ever been raised by the daughters because the Defendant promised to live with the Deceased.  According to the Defendant, it was an unconditional gift.  He had to work in the Mainland and had his own home.  Nevertheless he lived with the Deceased for a few weeks for fear that she could not adjust to living alone after living with the clansmen on the rooftop of Wong King.  That explanation was hardly acceptable as the living together was 6 months after creation of the joint tenancy.  There was no apparent reason why the Deceased would have given up part of the control of her property there and then.  I find that there was a condition attached to the creation of the joint tenancy.  The Defendant had difficulties living with the Deceased on a long term basis.  He breached the condition and lived with the Deceased for a few weeks to pay lip service to that promise.

(iii)  The Plaintiff said that the Defendant borrowed $700,000 from the Deceased but the Defendant said it was a gift.  I prefer the Plaintiff’s version.  Where the Deceased gave the Defendant ¼ of the proceeds of sale of 8/F Lead On Property, that was pursuant to a “trust” created by the Father. Where she made the Defendant a joint tenant of the SPK Property, it was based on a promise of the Defendant to live with her.  I cannot find any reason for the Deceased, who was so cautious with money, to give $700,000 to the Defendant for no apparent reason.

(iv)  As admitted by Miu Ying, the Deceased had once suggested adding her and the Defendant as signatories to her bank accounts.  That did not come about because the Defendant was not available.  If the Defendant was greedy, why would he not attend to the matter immediately then?

(v)   Occupying the Lead On Property rent free was in accordance with the agreement between the Father and the Defendant.  Continuing to do so after the demise of the Father was his taking advantage of the inaction of the Deceased and the siblings.  His pocketing part of the rental income of the Wong King Property, as admitted by him, was in the same vein.

(vi)  Despite the daughters’ suspicion that the Defendant had, through Mr Lee Yuen, obtained $2,000,000 from the Deceased, I am not satisfied that the Defendant had pocketed that sum.  It was the Deceased’s idea to give Mr Lee Yuen that sum the day after the Will was executed, likely out of fear that the daughters would freeze her bank accounts.  Lee Yuen put it into a newly opened deposit account.  He could not provide satisfactory documentary proof of where the $2,000,000 which the Deceased gave him had gone.  In paragraph 12 of his witness statement, he said that he returned the money to the Deceased.  In the box, he kept saying that the money was returned to the Defendant (後尾過返條數佢個仔). At that time the Deceased was in the old age home.  The matter was only clarified when the Defendant gave evidence that the money was returned by depositing back into the Deceased’s bank account at the Guangdong Provincial Bank Account and Lee Yuen gave the deposit slips to the Defendant.  This was done on 17 December when the Defendant considered that there was no more need for Lee Yuen to keep the money.  The Defendant was also worried about the complication of recovering the money from Lee Yuen in view of his old age.  The Deceased always mentioned during her lifetime that she had $3,000,000. According to her schedule of assets for probate purposes, her bank savings were of a similar amount.  Having regard to the evidence, I am satisfied with the version of the Defendant as to the flow of the $2,000,000.  He had caused the amount to be returned intact to the Deceased instead of using it himself.

53.  Having considered the matters in the preceding paragraph, though the Plaintiff held an honest belief, I am not satisfied on balance of probabilities that the Defendant had been luring the Deceased into giving him her assets gradually. 

C.  WHETHER THE DECEASED HAD MENTAL PROBLEM

54.  Evidence on the mental condition of the Deceased came from witnesses as to facts, hospital records and the 2 doctors.

Evidence of Witnesses as to Facts

55.  Evidence from the Plaintiff’s side showed that the Deceased had severe lapse of memory and paranoia.  She always said that she had lost keys when in fact she had confused the keys with the padlock.  She added extra padlocks to the door and iron grille in total disregard of safe escape in the case of fire.  (Mr Lee Yuen confirmed that before the 2007 Admission, she was locked from the inside.)  She reported to the police about the alleged burglary. In fact Madam Leung had been with her until about 11-12 midnight on the previous night.  The Deceased slept only at about 3 a.m.  When the report was made to the police on the following morning, there was a lot of plastic bags inside the unit.  According to the police the alleged burglary could not have happened because the structure of the building was such that it was impossible for a thief to have climbed up the external walls to gain entry and there was no sign of forcible entry.  The police advised the Plaintiff to take the Deceased for a check on dementia (“the police advice”).  

56.  A few days before the alleged burglary, the Deceased urinated at the lift lobby of the San Po Kong Property.  This was what the neighbours told the daughters when the police was investigating the alleged burglary at the scene. I do not see why the neighbours and the Plaintiff’s side had to fabricate this and I accept the hearsay evidence as true.

57.  Since the alleged burglary, Madam Leung and the daughters observed that the Deceased was in a disturbed mental state and came under the illusion that someone would kill her and take away her money and that there were people holding parties at her home.  She slept on a nylon bed outside her flat to keep off the “thieves” and kept a knife to fend them off.  She became suspicious and distrustful of other people.  She wrongly accused a niece of stealing her money. 

58.  The Deceased moved to live at the rooftop of the Wong King Property with poor living conditions.  That could not be explained by her love for mahjong with her clansmen there.  I find that it was because she was afraid of the “thieves” at the SPK Property.  The Deceased walked around in underwear at the rooftop of the Wong King Property.  She was unable to take care of herself. She kept stale food in the kitchen.  She would not take a bath for days. 

59.  During conversations, the Deceased would be articulate initially but abruptly became lifeless despite being awake.  She spoke on totally unrelated subjects and recited the same events of the past.  She would cry out over the phone to her daughters without reason.

60.  With regard to the 2006 Admission, there was a dispute as to whether or not the Deceased had been ransacking her things all night; whether it was the Deceased or the Defendant’s idea to be discharged thereby preventing the Deceased from taking the MMSE; and whether the Defendant concealed the need to take MMSE from the daughters. 

61.  The hospital records did not mention any ransacking behaviour but I accept the daughters’ evidence that they saw the Deceased ransacking things when they visited her.  The chronological record in the medical notes showed that it was the Deceased who strongly requested for discharge before the Defendant was informed to attend the hospital.  The hospital had explained to the Deceased and the Defendant the need to take sputum sample for investigation and the possibility of deterioration but there was no record that it had explained the need for MMSE.  The inference that I draw is that the need for MMSE was not explained to the Deceased or the Defendant to impress upon them the need for the Deceased to stay in the hospital longer.  Although the notes said that “he (meaning the Defendant) and patient strongly requested home”, I cannot see any reason why the Defendant would want the Deceased to be discharged against medical advice.  The Deceased was not easy to take care of and was not willing to go to hospital.  Why would he not want her to stay for some time before returning home?  He was merely acceding to the Deceased’s request without knowledge of the need for MMSE.

62.  I find the allegation that the Defendant had forced the Deceased to be discharged against medical advice and that the Defendant concealed the need to take MMSE to be an honest but mistaken belief of the Plaintiffs’ camp.

63.  However, as admitted by the Defendant, he had promised to bring the Deceased to see a doctor after the discharge in 2006 and he had not done so, because the Deceased was stubborn and not willing.

64.  In challenging the Plaintiff’s allegation that the Deceased had mental problem, Mr Chan, cousnel for the Defendant, has very aptly drawn my attention to the following matters and I have considered them:

(i)  Despite learning of the Deceased’s “mental problem” and the increasing abnormal behaviour, the daughters had not told the hospitals of this.  With regard to the 2006 Admission, they might not have the opportunity to do so because the Deceased only stayed for one day.  However, they had not done so even during the 7-day hospitalization in 2007.  Nor had they taken her to see a private doctor.  The daughters explained that it was because the Deceased was stubborn and would not go.  The Plaintiff was most concerned with getting the Deceased into an old age home after her discharge.  According to the daughters, so long as the Deceased did not stab people with a knife, they were not afraid.  The Deceased was already over 80 and the most important things were her sleep, meals and happiness.  I find these explanations to be genuine reasons.

(ii)   The daughters had never challenged any of the legal transactions involving the Deceased’s assets during her lifetime.  To this, the Plaintiff explained that they were content to let the Defendant be the joint tenant of the SPK Property since he was willing to live with the Deceased.  The Plaintiff also accepted the distribution of ¼ proceeds of sale in respect of the 8/F Lead On Building as being in accordance with the parent’s intentions.

(iii)  The daughters had never told the grandchildren about the Deceased’s problem.  I accept it was because they were embarrassed to talk about their mother’s mental problem in front of the children.

(iv)  The transcript of the Meeting showed that the daughters had not challenged the Will on the ground of the Deceased’s mental problem.  The Plaintiff explained that she had no awareness to do so.  I note that the atmosphere disclosed from the transcript was amicable.  The daughters did mention the lack of intention to make a will.  The Defendant had not insisted on his rights under the Will.  I find that there was no reason for the daughters to be confrontational with the Defendant.

(v)   The issue of the Writ suggested that the Plaintiff was more worried about the Deceased’s assets than her health.  To this the Plaintiff and Miu Ying said that they were worried that the Defendant would deceive the Deceased, getting one asset after another from her.  I find that the daughters’ foresight turned out to be correct, at least in relation to the Lead On Property. That property was part of the Father’s estate in which the daughters had beneficial interest.  Unlike other legal transactions and the lending of money to the Defendant, the purported sale was behind the daughters’ back.  That was at a time when the Deceased was not angry with the daughters.

(vi)  The advice of solicitors was to issue the Writ rather than forming a mental health committee for the Deceased.  That should not be taken against the daughters who acted on legal advice.  In any case, issuing the Writ had served the daughters’ purpose by a less cumbersome procedure (compared to the appointment of a committee).

65.  Notwithstanding Mr Chan’s able submission, I find that the Deceased had displayed symptoms of mental problem as described by the Plaintiff’s witnesses.

66.  The important thing about Madam Leung’s evidence was not her “diagnosis” that the Deceased had mental problem but her observation of the gradual intensification of the mental symptoms over 2 years.  That, together with the police advice, served as a warning signal that the Deceased might have mental problem that warranted appropriate medical care or special attention when the demands on her mental faculties arose.

67.  I find that the daughters had passed their observation of the Deceased’s mental problem to the Defendant.  Miu Ying told the Defendant that the Deceased recklessly made a false report (亂報案).  I disbelieve the Defendant when he said he did not know about all these until after the Deceased’s death.  The siblings were then not in a bad relationship.  There was no reason why the daughters would have kept the alleged burglary secret from the Defendant.  It was illogical that Mr Lee Yuen knew about it but not the Defendant.  I accept the Plaintiff’s evidence that the Defendant had even told the daughters that the Deceased had put cooking oil and sugar into her own bedroom so that the thieves could not steal them.

68.  I find that there had been no medical treatment on the Deceased’s mental condition because the Plaintiff’s camp and even the Defendant knew that she was stubborn and did not like going to doctors.

69.  I also find that this aging mother with all the symptoms of mental problem had become a burden for the children.  The daughters’ camp who had been taking care of the Deceased for years wanted the Defendant to take up more responsibility.  To the daughters, so long as the Defendant was willing to live with the Deceased, they were happy to have him become a joint tenant to the SPK Property. 

Medical Evidence

70.  There was no positive finding by either of the 2 Doctors that the Deceased had any mental problem.  The highest that Dr Lo could put (despite substantial reliance on the allegations of the Plaintiff’s side) was that there was no way to rule out the presence of dementia or delusional disorder.

71.  Both experts did not have the chance to examine the Deceased during her lifetime.  They had been given, among others, the medical reports on the 3 Admissions to hospital and the statement of claim.  They interviewed the witnesses of the Plaintiff’s camp (i.e. the Plaintiff, Miu Ying and her husband Wai Ming and Fook Ying, another daughter), and those of the Defendant’s camp (the Defendant, Mr Lee Yuen, Ms Flora Li and Wai Fan).

72.  I will not rely on the 2 Doctors’ analyses of the credibility of witnesses.  It was not their function.  Moreover, some of their analyses were not necessary inferences.  By way of example: Mr Lee Yuen claimed that the Deceased reported to the police about loss of keys and was worried about losing money; so she called the police for security reasons.  

(i)   Dr Lo considered Mr Lee Yuen’s account of the Deceased’s report to the police to be not plausible but failed to consider why the Deceased gave, if at all, 2 versions of burglary to 2 sets of people. 

(ii)   Dr Lo considered that the fact that no thief was arrested and no stolen property was recovered showed that the Deceased had dementia.  With respect, failure to arrest a thief and recovery of stolen property could be due to a number of reasons entirely unconnected with a victim’s mental state.

(iii)  Dr Yu was of the view that if the Deceased did tell 2 stories – one to the police and another to Mr Lee Yuen, she had the mental capacity to compose stories.  That she told 2 different stories to 2 different sets of people would not in itself suggest dementia.  On the other hand, if she could repeat the same story to one set of persons several times, that would rule against dementia because she had the memory to tell the same story to the same persons.  There was no logical reason why the Deceased should compose 2 stories. 

73.  There were also other unsatisfactory aspects in Dr Lo’s evidence:

(i)  He regarded the mention of Hakka dialect in the hospital records as a “language barrier” when those records did not mention any difficulties in communication between the Deceased and the hospital staff.

(ii)   He considered the fact that the Deceased practised signing her name before signing the Will was an indication of deterioration of mental faculty. He had not considered that a trembling hand might be due to old age and not faulty mental function.

74.  The 2 Doctors held common views that (i) the descriptions in the statement of claim suggested that the Deceased had bad memory and other intellectual impairments leading to poor self-care and delusions and irrational behaviour.  If the daughters’ version was accepted, such descriptions were typical of dementia and psychosis.  (ii) If the Police Report was correct and if the police did not find forcible entry so as to come to a conclusion that there was no alleged burglary, that could raise suspicion of delusion and hence psychosis.  (iii) Cerebral atrophy could be aged related which would not cause a person to suffer from significant intellectual impairment.

75.  Dr Lo opined that the paranoid symptoms of the Deceased noticed in 2005 was compatible with “delusional disorder”.  The report on the 2006 Admission “being confused at night with poor memory” was compatible with delirium.  The report on the 2007 Admission did not mean that she had no dementia because even a 2 year old child could be described as alert and able to give her name; yet the child would not have the mental capacity to give a statement or make detailed planning.  If she had dementia or delusion in 2005, dementia was not usually reversible and was progressive.  There was no proof that the Deceased had improved. 

76.  I am of the view that Dr Lo had placed undue emphasis on the report of the 2006 Admission which coloured his analyses of the subsequent reports. 

77.  I favour Dr Yu’s approach as he refrained from making findings on which person/camp was telling the truth.  He noted that the Plaintiff’s version was not based on objective data (except the police report).  He considered that the Deceased’s capability of managing money discredited the daughter’s description of intellectual impairment (para 22 and 23 of the Joint Medical Report).  He based his findings instead on the medical reports of the 3 Admissions. The Deceased appeared to be able to give a medical history.  She was competent enough to sign the DAMA form.  She was conscious and alert and emotionally stable during the 2007 Admission.  She was able to request analgesics.  The “confusion, poor memory” recorded in 2006 was delirium but was probably transient and reversible because even a healthy person could show such symptoms during acute medical illness.  The 2007 Admission showed no similar symptoms, thus she did not have progressive intellectual impairment (dementia).  Regarding cerebral atrophy mentioned in the 2007 medical notes, there was no evidence of its magnitude.  In his oral evidence, he pointed out that in the few days that followed, the doctors did not pay attention to the brain scan.  If there had been dementia, the symptoms would have surfaced in that week of hospitalization. Therefore it was probably age-related cerebral atrophy which would not cause a person to suffer from significant intellectual impairment.   He was of the view that there was insufficient evidence to find dementia, psychosis or any mental disorder. 

78.  There was a dispute between the parties as to what Dr Lam meant by the “last” admission in her report (see paragraph 8(iii) above).  I am of the view that since she was the treating doctor on the 2008 admission, it meant the 2008 admission and not 2007.  Dr Yu commented that Dr Lam could not rule out dementia because any sign of dementia would be overshadowed by the acute medical illness from which the Deceased was going to die in a few hours.  Dr Lam described the Deceased as having “deficit in memory, attention and problem solving”.  To expect the Deceased to have a clear mind whilst suffering pneumonia was almost impossible.

79.  Adopting Dr Yu’s approach, the Deceased was able to handle her money.  She was able to distinguish between clansmen who lived at the rooftop who could not afford to pay rent and the tenant of the Wong King Property from whom she wanted a rent increase.  She was not just passively receiving rent but had instructed the Defendant to seek a rise in rent for a specific sum.  Her mental function could not be too bad. 

80.  On the other hand, I have accepted the evidence from the Plaintiff’s camp as described in the statement of claim, the existence of the police comment that there probably was no burglary and the police advice.  Additionally, Miu Ying kept the passbook of the Deceased on the latter’s request.  The Deceased also told Madam Leung where she placed her valuables so that the latter could remind her in case of need.  In the premises, based on the common views of the Doctors and the approach of Dr Yu, the Defendant had symptoms typical of delusion dementia and psychosis.  

D.  WHAT HAPPENED IN RELATION TO THE PREPARATION AND EXECUTION OF THE WILL

81.  All the evidence came from the Defendant’s side.  Given my negative findings on credibility, short of admissions, documentary proof and objective support, it is difficult to determine what the true circumstances were.  Nevertheless, I have considered the following aspects:

(1)   Who gave instructions for the preparation of the Will and the instructions given;

(2)   Attempts to ascertain the testamentary capacity ;

(3)   Absence of a witnessing or approving doctor;

(4)   Dialect used;

(5)   Interpretation of contents of the Will;

(6)   Absence of the other attesting witness;

(7)   Non-production of the file of JKTH relating to the Will;

(8)   Absence of Wai Fan as a witness.

D1.    Who Gave Instructions for the Preparation of the Will and the Instructions Given

82.  Ms Flora Li’s witness statement (paras. 8 and 9) stated that it was the Deceased who informed her to prepare a will.  Miu Ying had queried how that was possible because the Deceased could not speak Cantonese and every contact with solicitors had to be through a son or daughter.  It was confirmed by Ms Flora Li and the Defendant in their oral evidence that it was the Defendant who called Ms Flora Li on behalf of the Deceased and instructed Ms Flora Li that it was the Deceased’s idea to dispose of only the Hong Kong assets in favour of the Defendant.

83.  According to the Defendant, following on the Deceased’s conversation with the bank manager, he asked the Deceased whether she wanted to proceed with the making of a will.  The Deceased agreed.  Under cross-examination, the Defendant disclosed for the first time that he then asked her, “What about your 2 properties in Hong Kong?”  She said she would also give them to the Defendant.  Based on his evidence, the Deceased never explicitly mentioned what to pass on to the Defendant and the latter assumed it was all her bank accounts because the Deceased had wanted to add his name to her bank accounts.  (Note: the bank manager was from only one of 2 banks in which the Deceased had accounts.) 

84.  Ms Flora Li’s evidence was that the Defendant’s instructions over the phone was that everything was to be given to him.

85.  Judging from the contents of the Will, the Defendant’s version was the more probable one.

D2.    Attempts to Ascertain the Testamentary Capacity of the Deceased

86.  On Ms Flora Li’s evidence, both on the day before and the day of execution of the Will, there had been attempts to ascertain the testamentary capacity.

87.  On the day before, she asked the Defendant over the phone whether or not the Deceased should have a doctor to certify that she was sober (清醒) and had no illness, because of her old age.  It was dismissed by the Defendant.  She was told by the Defendant that the Deceased was not willing; that she could walk and run so why bother to see a doctor?   

88.  I accept that Ms Flora Li did not know the reason for the 2006 Admission.  It was only under cross-examination and with some period of silence that she disclosed for the first time ever the very sensible question she asked on the day before execution of the Will.  She knew this was to protect the Deceased who was her real client, to ensure that her wishes were carried into effect.  Why then did she fail to mention it in her witness statement?  The material part of her witness statement (para 11) was brief:

“Since I dealt with the Deceased for a certain period of time, I found that she could understand what I said in Cantonese and I saw there was no need to seek certification from a doctor.”

89.  On this respect, the Defendant’s evidence was in serious conflict with that of Ms Flora Li.  The Defendant said that he had not discussed with her about the age and health of the Deceased although Ms Flora Li knew that the Deceased was in her 80s.  He said that Ms Flora Li did not suggest his taking the Deceased to see the doctor before making the Will due to her advanced age.  He claimed that he did not know that for elderly people, medical certification was needed before execution of a will.  If he had known it beforehand, he would have taken the Deceased to see the doctor first.

90.  There was no objective evidence to enable me to decide whether Ms Flora Li or the Defendant was telling the truth.

91.  Anyway, there was no evidence that Ms Flora Li had ever explained to the Defendant the implications of not having the Deceased examined by a doctor and the problems that might arise should validity of the Will be disputed.  Neither had she raised the issue of examination by a doctor with the Deceased who was her real client. 

92.  On the day of execution, Ms Flora Li allegedly chatted with the Deceased about her having tea before coming to the solicitor’s firm and the means of transport taken.  Those were not leading questions.  That conversation lasted only about 1 minute.  Knowing that the Deceased had other children, Ms Li asked why the Deceased wanted to give all assets to the Defendant. The Deceased allegedly told her that she was angry with the daughters suing her, that she only trusted the Defendant, that the other sons and their sons had grown up and what the bank manager told her.  

93.  Ms Flora Li was satisfied that the Deceased was relevant and coherent.  The latter did not have any problem with communication.  She saw that the Deceased looked healthy except for the use of a walking stick.  She had reported her observations to Mr Tam.  She also told Mr Tam (not clear on which day) that she had asked the Defendant to have medical examination of the Deceased.  Mr Tam allegedly said that if an aged person was unwilling, there was nothing that could be done.  Mr Tam gave no further instructions as to what to do with the Deceased.  Allegedly, he asked similar questions as to why the Deceased wanted to make the disposition in favour of the Defendant and obtained similar answers.

94.  There is no presumption that if someone is old, he must be sick or mentally incompetent.  There must at least be something to suggest mental incompetence: Chan Tin Lam v. Chan Lai Chun HCA12892/1996, 6.11.2000, Deputy Judge Muttrie.

95.  The alleged attempts to ascertain testamentary capacity that Ms Flora Li made on the day of execution were entirely prudent and would have refuted any suggestion that the Deceased was mentally impaired.  However, those attempts were never mentioned in her witness statement.  Given my finding on credibility, I cannot simply accept Ms Flora Li’s word without objective evidence (even if corroborated by the Defendant or Mr Lee Yuen).

D3.    Absence of a Witnessing or Approving Doctor

96.  Precautions might have to be taken for a medical practitioner to witness the execution of the Will:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions to be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings: Kenwards v. Adam, The Times, 20 November 1975, perTempleman J; see also Buckenham v. Dickinson [2000] WTLR 1083. Although this golden rule is not a rule of law, it is prudent practice which the court expects the practitioners to follow closely in normal circumstances.” Re: LLC (Statutory Will) [2010] 3 HKLRD 16, Poon J.

97.  In the present case, the prudent practice was not followed.  I give the benefit of the doubt to the Defendant that the one-day hospitalization in 2006 could not be regarded as reflecting a serious illness.  However, the Defendant was aware of the mental problem of the Deceased. He lacked good faith in his reply (if ever made) to Ms Flora Li on the day of execution.  Absence of an attesting or approving doctor was therefore a material deficiency in his case.

D4.    Dialect Used

98.  The Will stated on its face that the contents were translated to the Deceased in Cantonese by Ms Flora Li.  The Defendant, Ms Flora Li and Mr Lee Yuen all stated in their witness statements that Lee Yuen explained to the Deceased in Hakka.  All of them withdrew this piece of evidence in their oral testimony.  They insisted that Ms Flora Li had used Cantonese while the Deceased and Mr Lee Yuen used Cantonese with a Hakka accent.  Unfortunately, nowhere in her witness statement did Ms Flora Li mention that she and the Deceased used such dialects as she described. 

99.  The Defendant said that Mr Lee Yuen was brought there with the intention of his being an attesting witness.  Ms Flora Li said she did not treat Mr Lee Yuen as an interpreter.  When Mr Lee Yuen explained to the Deceased, Ms Flora Li treated them as “chatting” and not interpreting. She was later forced to admit, during cross-examination, that she treated Mr Lee Yuen as “repeating” what was said (覆述) and Mr Lee Yuen told her that he had explained to the Deceased that it was a will (頭先我講解咗這是遺囑給我家姐聽).  According to the Defendant, it was because of “habit” that the Deceased let Mr Lee Yuen repeat the contents of legal documents to her.  Understandably, Ms Flora Li, not knowing Hakka, could not tell if Mr Lee Yuen had faithfully interpreted everything to the Deceased.  Mr Lee Yuen refuted all suggestions that there had been interpretation by him.

100.  The Defendant, Ms Flora Li and Mr Lee Yuen could not have missed the importance of showing that the Deceased understood the dialect that was used.  Why would Mr Lee Yuen repeat contents of legal documents in Hakka out of habit?  The inference is that regardless of whether Mr Lee Yuen attended as an intended attesting witness, he also bore the role of an interpreter to ensure that the Deceased fully understood what was going on. Why did they coincidentally withdraw the same piece of evidence?  The inference is that probably that there had been no translation in Hakka or that Mr Lee Yuen was not up to standard.

101.  I find that Ms Flora Li used Cantonese but I am left in doubt as to whether translation in Hakka had taken place and, if it did, the extent of the translation and its accuracy.

D5.    Interpretation of the Contents of the Will

102.  Ms Flora Li said at least 2 times in the box that she had explained the contents of the Will to the Deceased as follows:

“阿婆, 您是否將在生嘅動產與不動產都比哂您呢個仔?”

That meant giving the whole estate to the Defendant.  Allegedly, the Deceased confirmed that to be correct. 

103.  Her translation was at variance with the Will which gave only the Hong Kong assets to the Defendant.  Upon my pointing it out, and despite turning to the Will, Ms Flora Li did not explain that it was her slip of tongue but that a will could only dispose of the assets in Hong Kong.  If that was Ms Li’s view, that was erroneous in law.  A will can dispose of assets both within and beyond Hong Kong. Ms Li was clearly taken by surprise. She was silent in the box for a long moment. 

104.  I asked her whose idea it was that the Will only purported to dispose of the assets in Hong Kong.  She said it was the Deceased’s.  I asked her when she was given such instructions.  By this point (after examination in reply), she said for the first time in her evidence that it was the Defendant who instructed her of this when he first instructed her to prepare the Will.  She had asked the Defendant whether it was just Hong Kong or other places as well to which the Defendant said just Hong Kong assets.  She confirmed that she had not asked the Deceased whether she had assets elsewhere and how she wished to dispose of her assets beyond Hong Kong. 

105.  According to Ms Flora Li, Mr Tam also asked a similar question of the Deceased that referred to the whole estate (你比哂在生的動產不動產呢個仔). 

106.  Ms Flora Li’s version was supported by Mr Lee Yuen who said that there was no mention of Hong Kong or other places but that the Will gave everything to the son. 

107.  Ms Flora Li’s version was inconsistent with that of the Defendant. The Defendant said that both Ms Flora Li and Mr Tam stated that all of the Deceased’s movable and immovable property in Hong Kong would go to the Defendant upon her death.  Afterwards, Mr Lee Yuen repeated in Hakka. 

108.  The Defendant said that Ms Flora Li did tell the Deceased that for the 2 industrial properties she was just the personal representatives and other children also had shares.  (Ms Flora Li knew that the Deceased was also the administratrix of her husband’s estate when she was consulted on the Writ.) Ms Flora Li was also said to have told the Deceased that she could change the Will later.  This was corroborated by Mr Lee Yuen and the Defendant.

109.  Given such inconsistencies in the evidence and the lack of attendance notes, I am unable to find what was translated to the Defendant.  If more weight should be attached to the evidence of Ms Flora Li, the one directly involved in the preparation and execution process, her evidence showed that the Will was not translated accurately to the Deceased.  One is left in doubt as to whether the English contents of the Will or the Deceased’s affirmative reply to Ms Flora Li’s erroneous translation represented the true wish of the Deceased. 

110.  The erroneous view held by Ms Flora Li clearly coloured her conduct. Apparently she did not ask whether the Deceased had assets beyond Hong Kong; whether she had made or wanted to make another will to dispose of them; if not, why not.  This created a further doubt as to whether the Deceased was aware that she was to die partly intestate.  Although the value of the Mainland assets was unknown, it could not be regarded as insignificant.

D6.    Absence of the Other Attesting Witness

111.  On the evidence of Ms Flora Li, the role played by Mr Tam was minimal.  He did not sense the need to explain the consequence of lack of medical examination to the Defendant or the Deceased, if only to protect his firm.  He made no attempt to ascertain what dialect the Deceased wanted to have the translation in.  There was not even an averment (unlike the situation of Ms Flora Li) that Mr Tam knew from past legal transactions in which he countersigned that he knew the dialect used by the Deceased or her mental fitness. He allegedly explained the contents of the Will.  He allegedly asked leading questions to establish the Deceased’s intention to make dispositions in favour of the Defendant to the exclusion of others.  He did not ask the Defendant (the sole beneficiary under the Will) to leave the room whilst he (Mr Tam) made enquiries with the Deceased.  He did not give a witness statement although his is still practicing at JKTH. 

112.  Adverse inferences can be drawn by the Court in appropriate circumstances: Wisniewski v. Central Manchester Health Authority [1998] PIQR Part 5 CA324, at page 340

“From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)   If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn.  If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

113.  The law does not require, as a matter of course, that both attesting witnesses testify.  There can be valid reasons why one or both of them does not testify, e.g. death or indisposition. 

114.  However, in this case, the challenge to authenticity and due execution of the Will had been raised with Mr Tam directly in a letter from the Plaintiff’s solicitor dated 31.7.2008, before this action was instituted.  The importance of having Mr Tam as a witness could not have been missed.  There were ample grounds for drawing adverse inference against the Defendant arising out of his absence as a witness.  It might be that Mr Tam and/or Ms Flora Li had done little or nothing towards ascertaining the testamentary capacity of the Deceased or that their attempt to ascertain the testamentary capacity turned out to be against the Defendant. 

115.  Or Mr Tam might have been wary of potential liability arising as a result of his firm’s failure to do what was proper.

“A solicitor, when preparing a will, owes a duty of care to an intended beneficiary to ensure that effect is given to the testator’s testamentary intentions so that the beneficiary receives what the testator intended he should receive.” Williams on Wills, Vol 1, 2002, section 1.5

“A solicitor may be liable in negligence to a disappointed beneficiary where he has been guilty of fault in preparing a will or in supervising the execution of a will. But it has been held that a solicitor will not be liable to a beneficiary where the default merely causes a loss to the value of the testator’s net estate.” Halsbury’s Laws of Hong Kong, 2^nd ed, para 425.017

116.  There was no valid reason for Mr Tam’s absence.  Material evidence had been withheld from the Court. 

D7.    Non-Production of the File in JKTH Relating to the Will

117.  JKTH did not produce the file relating to the Will despite the request of the Plaintiff’s solicitors.  No blame could be laid on Ms Li because she left JKTH in 2008 and so the file was not in her possession.  The Plaintiff’s solicitors had, before commencing this action, made oral enquiry with a lady of JKTH and were told that,

“Until they could locate the file and the alleged will, they were unable to confirm if the alleged will was indeed a document prepared by their firm signed by the Deceased in the presence of their said Mr Tam and Ms Flora Li as alleged.”

There was not even a reply that the file could not be located.  Non-production of the file was an indication that JKTH would not confirm that the Will was prepared by their firm or its due execution.  There was also no contemporaneous record to verify the version of Ms Flora Li.

118.  Another puzzling feature is that Ms Flora Li did not open a special file for the Deceased but used a miscellaneous file with only Ms Li’s reference.  The file included matters relating to other clients who were brought in by Ms Li.

119.  Anyway, Ms Li stated that she had not recorded her conversation with the Defendant on the day before the execution.  Nor had she recorded that Mr Lee Yuen and Wai Fan were present during the execution.  It was common sense that a file note of all these and questions pertaining to the testamentary capacity of the Deceased should be made in case any dispute arose among the beneficiaries or allegations were made against JKTH.  I am left in doubt as to whether Ms Flora Li/Mr Tam had done what they allegedly did to protect the interests of the Deceased or the beneficiary.  The file might have contained information damaging to the Defendant’s case. 

D8.    Absence of Wai Fan as a Witness

120.  According to the Defendant, Wai Fan was present at the time of the execution of the Will, as an intended attesting witness.  That presence was confirmed by the Plaintiff after making enquiries with her siblings.  I accept that he was so present.

121.  Giving a substantial portion of assets to the Defendant was against the interest of Wai Fan.  His lack of objection to the making of the Will would have been strong proof that the Deceased had testamentary capacity and due execution of the Will.  This was reaffirmed by his attending an interview by the doctors and giving information in favour of the Defendant.  The Defendant also said (in para 22 of his witness statement) that Wai Fan has all along been financially sound and he did not want the assets of the Deceased.

122.  Under cross-examination, the Plaintiff admitted that Wai Fan supported the Defendant in propounding the Will.  However, she claimed that the 2 sons wanted to divide the Deceased’s estate because traditional Hakka people would want the sons to get all the estate.  She could not explain why the division was not among 4 sons, though.

123.  The Plaintiff hotly attacked Wai Fan’s credibility and integrity based on what Wai Pang had told her, which I indicated I would not rely on.  Wai Fan was a business partner of the Defendant.  The daughters alleged that he had bad relationship with the Deceased in 1970s and the Deceased was afraid that he might kill her.  I do note, however, that Wai Fan was the one who came to the Deceased’s rescue before her 2007 Admission.  According to the transcript of the telephone conversation between Mr Lee Yuen and the Plaintiff, Wai Fan took turns with the Defendant to buy rice boxes for the Deceased.  So Wai Fan’s relationship with the Deceased could not be as tense as described by the daughters. 

124.  What was undisputed was that Wai Fan, together with the Defendant, had successfully persuaded the Deceased to sell one property to them behind the daughters’ back.  Wai Fan might have cause to side with the Defendant.  I cannot simply rely on what Wai Fan told the Doctors and his mere presence at the execution of the Will to draw inferences without his being tested in cross-examination.

125.  Having analyzed the facts, I come to the core issues.

E.  WHETHER THE DECEASED HAD TESTAMENTARY CAPACITY

The legal principles

126.  The sound disposing mind and memory must exist at the actual moment of execution of the will: Halsbury’s Laws of Hong Kong, at para 425.558. The classic test for determining whether the testator had the appropriate mental capacity can be found in Banks v. Goodfellow [1870] LR 5 QB 549.  

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The 4 medical criteria agreed upon by Dr Lo and Dr Yu in testing testamentary capacity were much in the same vein. 

127.  It is presumed that a testator was of sound disposing mind when he made his will.  If the question of his testamentary capacity is contested, the onus lies on the person propounding the will to prove testamentary capacity on the balance of probabilities.  However, if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent.  See Chan Tim Lam v. Chan Lai Chun.

128.  Applying Banks v. Goodfellow,

(i)  I accept that the Deceased knew what a will was and its effect. She had refused to make one for some time.

(ii)   I am not satisfied as to whether there had been translation by Hakka to the Deceased, the extent thereof and its accuracy. I will assume that there was none and the Deceased could have understood the Cantonese translated version of Ms Flora Li.  She understood herself as disposing the whole estate to the Defendant, which was not in accordance with the English Will.  She did not know that she would die partly intestate. 

(iii)  There was no attempt to ascertain if the Deceased knew the names of close relatives except that of the Defendant. 

(iv)  According to the Defendant, the Deceased believed that her husband’s estate belonged to her but Ms Flora Li had explained to her that all the children were entitled to the father’s estate with her.  Given my doubts as to Ms Flora Li’s credibility, I am not satisfied that the explanation had corrected the Defendant’s view or that the Deceased was able to assess potential claims by her children to what she thought was her estate.

(v)   There was no positive medical finding of mental impairment.  There were symptoms which the 2 Doctors agreed were capable of showing delusion, dementia or psychosis.  The Defendant was aware of them well before execution of the Will.  Those symptoms might have distorted her judgment relevant to making the Will.  The Defendant’s refusal to heed Ms Flora Li’s suggestion on the day before the execution and the lack of an attesting or witnessing doctor were unsatisfactory.  

(vi)  I am left in doubt if attempts had been made by Ms Flora Li or Mr Tam to ascertain testamentary capacity.  Even if Ms Flora Li’s evidence is accepted, insufficient steps had been taken by her or Mr Tam. No proper advice was given to the Defendant or the Deceased on the impact of lack of medical examination in view of her advanced age.

129.  I am not satisfied that the Defendant had proved testamentary capacity to the requisite standard.

F.  WHETHER THE WILL WAS DULY EXECUTED

130.  The law been summarized in Halsbury’s Laws of Hong Kong, 2nd ed, para 425.501:

“In general every instrument purporting to be testamentary, or to affect a previous testamentary instrument, and made by a person over the age of 18 and of full capacity, and executed in accordance with the formal statutory requirements, is entitled to probate if it purports to dispose of property, whether or not the deceased in fact left any property, or contains the appointment of an executor even if the executor renounces probate.”

131.  On its face, the Will met the statutory requirements for writing, signature by the Deceased and attestation by 2 witnesses: section 5(1) of the Wills Ordinance, Cap. 30.  (Note that quite contrary to what Lee Yuen told the doctors, the Deceased did not practice signing on blank paper before signing the Will.)

132.  The Cantonese translation by Ms Flora Li, if made, was inaccurate. The Deceased was agreeing to something materially different from the contents of the Will.  Mr Tam did not give evidence in support of the authenticity of the Will.  JKTH would not confirm that the Will was a document prepared by their firm and executed as alleged.  I am not satisfied that there had been due execution.

G.  KNOWLEDGE AND APPROVAL OF THE WILL

133.  This depended on 2 things in this case:

(i)   Proper translation of the contents of the Will; and

(ii)   Removal of suspicion under the second rule in Barry v. Butlin (1830) 2 Moo PCC 480.

134.  With regard to (i), the incorrect Cantonese translation of the contents of the Will to the Deceased was fatal to the Defendant’s case.  She knew and approved something different from the contents of the Will. 

135.  With regard to (ii), the Defendant was put to strict proof that the Will was executed by the Deceased with full knowledge and approval of the contents.

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

136.  The 2^nd limb is 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: Tchilingirian v. Quzounian & others [2003] EWHC 1220 (Ch), at para 73.

137.  Suspicious circumstances are pointers and not the end in itself.  The Court’s job is to make sure that the will represents the testator’s true wishes.  If knowledge and approval of the testor was clear, the will should be propounded even if the Court does not understand why the testator has made the disposition in the will.  The reason is that there may be other relevant matters not known to the Court or even to the parties themselves In the Estate of Yip Keung,HCAP15/2004, 19.12.2007, A Cheung J paras. 163, 170, 171.

138.  The rule in Barry v. Butlin is invoked here because of the substantial benefit the Defendant will take under the Will.  He arranged for its preparation and execution.   

139.  There was no basis to suggest a conspiracy among Ms Flora Li, Lee Yuen and the Defendant to take advantage of the Deceased and rip her of her estate.  Receiving legal costs of about $1,000 for making the Will could hardly be an inducement for Ms Flora Li to lie.

140.  The friendship between the Defendant’s wife and Ms Flora Li did not excite my suspicion.  History showed that which solicitor firm was engaged by the Deceased in the past depended on which child helped her.  In the case of Miu Ying, Messrs. Wat & Co would be engaged; in the case of the Defendant, JKTH.  As the Deceased intended to leave her estate to the Defendant, it was simply natural for the Defendant to go to JKTH. 

141.  The Defendant’s payment of fees for making the Will did not excite my suspicion.  Since he was given such substantial estate, how could he leave it to the Deceased to pay that meagre fee?

142.  The Defendant’s presence throughout the interpretation of the Will to the Deceased and her execution excited the Court’s suspicion.  Ms Flora Li admitted that she knew that if all the estate was to be given to a beneficiary, that beneficiary should excuse himself at the time of the execution.  Yet neither Ms Flora Li nor Mr Tam informed the Deceased or Defendant of this.  However, the evidence did not suggest any improper conduct on the part of the Defendant during that presence.  Nor was there evidence of any influence that he had tried to exert on the Deceased or other persons.  This suspicion is not sufficient to challenge knowledge and approval. 

143.  Suspicion was aroused when the Defendant admitted under cross-examination that it was he who caused the Deceased and Mr Lee Yuen to believe that the daughters would also freeze the Deceased’s bank accounts after issuing the Writ.  This was in the light of his knowledge that the Deceased had symptoms of illusion of theft.  I am not sure if the Deceased would otherwise have harboured the same anger towards the daughters or decided to make a will.

144.  Although the Defendant did not initiate the idea of making a will, he apparently assumed (without evidence of asking the Deceased) that by wanting to add the Defendant’s name to her bank accounts the Deceased wanted to leave all movable assets to him.  He had asked the Deceased a leading question as to disposal of 2 properties in Hong Kong.  Despite his knowledge that the Deceased had assets in the Mainland (as evidenced by the transcript of the Meeting) he never asked her what she wanted to do with them.    

145.  The Defendant had interest in those 2 Hong Kong properties – in terms of occupation and rental income.  He had the motive to procure a benefit for himself as he knew he might face dire consequences were his brother Wai Pang to take action to recover possession of the Lead On Property that the Defendant was occupying.  (see transcript of the Meeting at page B222). 

146.  As for the Mainland properties, the Defendant did not know where the title deeds were and had no certainty of laying hands on them.  (See the transcript of the Meeting when he expressed relief at the title deeds being with Miu Ying at page B241.)

147.  I am not sure if the Deceased would have made the same Will if the Defendant did not make the distinction between Hong Kong properties and those in the Mainland.

148.  Suspicion was aroused by the Defendant’s dismissal of Ms Flora Li’s suggestion to seek a doctor’s examination  of the Deceased despite his knowledge of symptoms of her mental problem. 

149.  In the light of the suspicions, I am not satisfied that the Defendant has discharged his burden under the second limb of Barry v. Butlin.

H.  ASSETS FALLING WITH THE ESTATE OF THE DECEASED

150.  There has been some suggestion that the Deceased had mentioned during her lifetime that she held the $1,000,000 from the estate of the deceased daughter and the Lead On Property on trust for the surviving daughters. However, I do not think the evidence was sufficient to establish any trust.  There was nothing in writing.  Any intended gift was not completed by a transfer inter vivos. The Defendant’s awareness of the “trust” (as evidenced by the transcript of the Meeting) could not alter the legal position.  It is fair to say that the Plaintiff has not pressed hard on this issue.  Accordingly this class of asset will fall to be distributed under the Deceased and the Father’s estates in accordance with intestacy law. 

I.  FINDINGS

151.  The Deceased was an illiterate and traditional Hakka mother with strong character.  She favoured sons over daughters.  She was cautious with money. She was capable of understanding some matters explained to her in Cantonese and could communicate with Cantonese speaking persons.  However, the extent of her comprehension of Cantonese was not clear.  She still required translation into Hakka as a safety measure.  That was why Mr Lee Yuen was present in many legal transactions – the preparation of the Power of Attorney, processing of the Father’s letters of administration and the execution of the Will – to do translation into Hakka.

152.  There were no medical findings on mental impairment or other problem. Judging from her capability of handling money, the Deceased’s mental function could not be too bad.  On the other hand, there were symptoms as described by the daughters and Madam Leung that were capable of being delusion, dementia or psychosis.  The Defendant knew about those symptoms well before execution of the Will.  He himself told the daughters about the Deceased putting cooking oil and sugar into her bedroom to avoid being stolen.  He also knew about the report to the police before execution of the Will.

153.  There had been no medical treatment on the Deceased’s mental condition because both the Plaintiff’s camp and the Defendant knew that she was stubborn and did not like going to doctors.

154.  This aging mother with all the symptoms of mental problem had become a burden for the children.  The daughters’ camp who had been taking care of the Deceased for years wanted the Defendant to take up more responsibility.  To the daughters, so long as the Defendant was willing to live with the Deceased, they were happy to have him become a joint tenant to the SPK Property. 

155.  The Deceased did not like the idea of making a will.  She had mentioned about distributing assets to the children evenly.  However, prompted by her anger towards the daughters suing her, fear that the daughters might freeze her bank accounts and her conversation with the bank manager, the Deceased decided to make a will.  Transfer of $2,000,000 to Mr Lee Yuen was also prompted by fear of her bank accounts being frozen.  The Defendant did not pocket that sum but it was returned by Mr Lee Yuen to the Deceased intact.  I am not satisfied that the Defendant had been luring the Deceased into giving him her assets gradually and making a will was not part of that exercise.

156.  The Defendant followed up on the bank manager’s suggestion and asked if the Deceased would make a will, to which the Deceased agreed.  The Deceased did not explicitly mention what to pass on to the Defendant and the latter assumed it was all her bank accounts.  The Defendant asked her, “What about your 2 properties in Hong Kong?”  The Deceased said she would also give them to him.

157.  It was the Defendant who called Ms Flora Li and instructed her that it was the Deceased’s idea to dispose of only the Hong Kong assets.  The Defendant paid about $1,000 for making of the Will.

158.  Save that Ms Flora Li used Cantonese, there is no objective evidence to enable me to make positive findings as to what actually happened as to execution of the Will, particularly on the following matters:

(i)  Whether on the day before the execution, Ms Flora Li had asked the Defendant whether the Deceased should have a doctor to certify that she was sober (清醒) and had no illness, because of her old age.  If she had asked, the Defendant had dismissed it without good faith.  If she had not asked, she had not done what was reasonable to ascertain the testamentary capacity of the Deceased.

(ii)   Whether on the day of execution, Ms Flora Li and Mr Tam had made the alleged attempts to ascertain the testamentary capacity of the Deceased and why she wanted to give the assets to the Defendant.

(iii)  What the Cantonese translation of the contents of the Will was.  If Ms Flora Li’s version is accepted, the translation was wrong and fatal to the Defendant’s case.

(iv)  Whether there had been translation in Hakka, the extent of such translation and its accuracy.

159.  Anyway, there was no evidence that Ms Flora Li had ever explained to the Defendant or the Deceased the implications of not having medical exam before execution and the problems that might arise should validity of the Will be challenged.  Ms Flora Li held a wrong view that a will could only dispose of Hong Kong assets.  That coloured her conduct.   She did not ask the Deceased whether she had assets beyond Hong Kong, whether she had made or wanted to make another will to dispose of them; if not, why not.  One is left in doubt as to (i) whether the English version or the Cantonese version represented the true wish of the Deceased; and (ii) whether the Deceased was aware that she was to die partly intestate.

160.  There was no valid reason for the absence of Mr Tam as a witness.  JKTH would not confirm that the Will was prepared by their firm or its valid execution.  Material evidence had been withheld by the Defendant’s side.  I decline to draw inferences from the mere fact that Wai Fan attended the execution and what he told the Doctors without his being cross-examined.  The lack of a witnessing or approving doctor is a material deficiency in the Defendant’s case. 

161.  I am not satisfied that the Defendant had discharged the burden of proving the testamentary capacity of the Deceased or due execution of the Will. 

162.  The 2^nd limb of Barry v. Butlin applied.  The following excited the Court’s suspicions:

(i)  The Defendant’s admission that it was he who caused the Deceased and Mr Lee Yuen to believe that the daughters would freeze the accounts of the Deceased.

(ii)   His dismissal of Ms Flora Li’s suggestion to have medical examination of the Deceased in the light of his knowledge of the symptoms of mental problem.

(iii)  His assumption that the Deceased wanted to leave all movable assets to him without asking her.

(iv)  His leading question as to how the 2 Hong Kong properties should be disposed of despite knowing that there were Mainland assets of not insignificant value.

163.  I am doubtful as to whether the Deceased would have decided to make a will or made one with the same contents.  I am not satisfied that the Defendant has discharged the burden under the 2^nd limb of Barry v. Butlin.

164.  Insofar as the estate of the deceased daughter and the Lead On Property are concerned, I find that no valid trust had been proved.  They fell to be distributed as part of the Father and Deceased’s estates under intestacy law. 

CONCLUSION

165.  I pronounce against the validity of the Will.  I declare that such parts of the estate of the Deceased found to be consisting of assets in the 2 estates of Lau Fut Sang and Lau Pang Ying respectively are to be distributed to the surviving beneficiaries in accordance with the stipulations in the Intestates’ Estates Ordinance (Cap. 71) irrespective of the provisions in the alleged will of the Deceased. 

166.  I make an order nisi that the Plaintiff should have costs of the action to be paid, in the first instance, out of the estate and to be recouped from the Defendant.

167.  There shall be summary assessment of costs on the papers on 20 January 2012 at 9:30 am.  No attendance is required. The Plaintiff shall file and serve her statement of costs by 12 January 2012.  The Defendant shall file and serve his grounds in opposition by 19 January 2012.

168.  I thank counsel for their thorough preparation of this case and appreciate their fair manner in eliciting evidence to assist the Court.