LAM PING v. ZI YAN LU

HCAP 13/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2004

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BETWEEN

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J U D G M E N T

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The probate claim

1.  The Plaintiff seeks to propound a will of her late husband who died on 19 June 2002. The will was dated 19 March 2002 [“the 2002 Will”].  Under the 2002 will, the Deceased made provisions for the Plaintiff and their daughter Lui Tsz Chik.  The validity of the 2002 will is challenged by the Defendant.

2.  The Plaintiff was the second wife of the Deceased.  They were married in Xiamen in 1989.  Their daughter Lui Tsz Chik was born in 1992.   She was not yet 10 when the Deceased died.

3.  Before this marriage, the Deceased had been married to another woman.  They were divorced in 1978.  There were two daughters [“the two sisters”] to that marriage.  The Defendant is one of the daughters.  After the divorce, the two sisters lived with their mother in Shanghai.  The Defendant went to the United States in 1983.  The Deceased maintained contacts with her by phones and letters.

4.  The 2002 Will did not contain any provision for the two sisters.  The estate of the Deceased made up of two real properties (one in Hong Kong and the other one in Xiamen) and some cash in bank accounts and some securities.  In a nutshell, the Deceased bequeathed all these properties to the Plaintiff and Tsz Chik with a rider that if the Plaintiff remarried the cash and securities would be inherited by Tsz Chik alone.

The earlier wills

5.  This can be contrasted with an earlier will made by the Deceased in 1999.  The 1999 Will is similar to the 2002 Will except in respect of the property at Xiamen.  The Xiamen property was dilapidated and the local authority had decreed that it had to be demolished and rebuilt.  In the 1999 Will, the Deceased stated that he had engaged an architect to design two new houses to be built there.  He bequeathed one of the houses to the two sisters and the other house to the Plaintiff and Tsz Chik.  It was also stated in the 1999 Will that the construction costs were to be paid by the two sisters.

6.  There was yet an earlier will made by the Deceased in 1994.  In the 1994 Will, the Deceased bequeathed the Hong Kong property to the Plaintiff and Tsz Chik.  The other properties in his estate (including the Xiamen property) were to be divided between the Plaintiff, Tsz Chik and the two sisters in four equal shares.  Apparently, the decree for demolition and rebuilding of the Xiamen property had not been made at that stage.

7.  Nobody applies for probate based on the 1999 Will or the 1994 Will.  These documents were produced by the Plaintiff in an affirmation of testamentary script of 3 September 2009.  Under Order 76 Rule 5, all parties to a probate action are required to file such an affirmation.  At a hearing on 11 August 2009, this court noted that neither party had complied with this rule.  The court therefore made an order on that day that the parties shall file affirmation of testamentary script within 28 days.  As mentioned, the Plaintiff filed the affirmation accordingly.  On the other hand, the Defendant did not file any affirmation of testamentary script notwithstanding the order.  The Defendant was aware of the order and what was required of her under the order because I have explained the requirement for her benefit at the hearing.  In view of the fact that she was absent at the hearing, I directed that a copy of the transcript of the hearing be sent to her by post.

8.  The Defendant did not put forward any evidence challenging the 1994 Will or the 1999 Will as documents reflecting the then testamentary intent of the Deceased.

The 2001 document

9.  Shortly before the trial, the Defendant filed a document called Written Request and Submission on 10 March 2010.  In paragraph 5 of this document, the Defendant mentioned for the first time that the Deceased made a will in August 2001 during his stay in the United States.  She said it was in writing and it was recently located by her in her garage.  Though she claimed to attach it to the document, it was not attached to the document filed on 10 March 2010.  She filed another copy of that document again on 17 March 2010, this time together with the attachments.

10.  The document attached was not an original document.  It was a copy only.  The document was dated 9 August 2001 [“the 2001 document”].  The first four lines of the documents were apparently crossed out.  But the words there can still be read.  On the face of it, it was not a will.  Instead, it was a written memorandum setting out what was said to be a decision made after discussion with members of the family in the United States regarding the finance and ownership of the Xiamen property.

11.  After reciting the decree of the local authority, the approval for re-development and the new design, the Deceased stated in the 2001 document that he had signed a construction contract with a contractor in Xiamen on 2 May 2001 for the demolition of the old building and the construction of new one.  The Deceased decided that the costs of demolition and construction were to be paid by the two sisters in equal shares and the new building would be owned by them equally.

12.  The Deceased further provided in the memorandum that the property was not to be sold to non-family members and the two sisters were to entertain relatives coming to visit the native place at Xiamen.

13.  Under cross-examination, the Defendant said the 2001 document was written by the Deceased and he had asked her to type it out as a will.  But she did not do so as she was more concerned about his health.

14.  Hence, even on the Defendant’s own evidence, the memorandum itself was not a will.  At the highest it contained instructions given to the Defendant for the preparation of a will, which she did not pursue.

15.  It is also plain to me that before her assertion in the Written Request and Submissions the Defendant did not regard the 2001 document to be a testamentary document.  She did not even refer to it in her Defence filed on 4 July 2006 despite she sought the court’s assistance to carry out her father’s wishes.  Nor did she state in the Defence that it was her father’s testamentary wish to give the Xiamen property to the two sisters.

16.  In her letter to the court dated 5 March 2009 (treated as her first witness statement and adopted as her evidence at the trial), she again did not refer to the 2001 document.  She asked the court to grant her father’s wishes and set out what those wishes were.  About the Xiamen property, she said her father’s wish was as follows,

“The family home on the island in China belong to the family not Lam, should go to one of my father’s living siblings.”

(my emphasis)

This statement contradicted her recent version of the Deceased’s testamentary wish that the Xiamen property would be given to the two sisters.

17.  In her statement filed with the court on 27 September 2009 (also adopted as her evidence at the trial), she did not refer to the 2001 document.  She asked the court to carry out the wishes of her father.  Her case as to his wish regarding the Xiamen property was set out at paragraph 19 of this statement.  There was no mention about the father giving the Xiamen property to the two sisters.

18.  I do not accept the recent location of the document from the garage as a credible explanation for this change in the Defendant’s case.  As mentioned, on its face the document is not testamentary in nature.  The earlier versions of the Defendant’s evidence are inconsistent with such a testamentary wish on the part of the Deceased.  The Defendant did not give any account for her change in stance.  Nor did she explain why she did not locate and produce that document earlier in blatant disregard of the requirement under Order 76 Rule 5 as explained in my judgment at the hearing of 11 August 2009.

19.  The 2001 document had to be considered against the background that the Xiamen property was to be rebuilt.  The evidence[1] shows (and I finds on the balance of probabilities) that Deceased had asked the Defendant (together with her other sister) to pay for the redevelopment.  If the two sisters had agreed to pay, the 2001 document might be relied upon to establish that the Deceased agreed to give them the property in such event.  But it is not disputed that the Defendant did not agree to pay.  Hence, the 2001 document could not have any legal effect.

20.  Further, unlike the other wills produced by the Plaintiff, the 2001 document did not deal with other properties of the Deceased apart from the Xiamen property.  If the Deceased intended the 2001 document to be his testamentary instructions, it is unlikely that he would omit any reference to his other properties, in particular his property in Hong Kong which had all along been his matrimonial home.

21.  I reject the Defendant’s evidence that the 2001 document contained his instructions to her for the preparation of a will.

The challenge by the Defendant to the 2002 Will

22.  The Defendant raised several grounds of attack against the 2002 Will in her defence, including,

(a)     fraud;

(b)    misrepresentation;

(c)     duress.

She also questioned whether the 2002 Will was written and signed by the Deceased.

23.  These are all serious allegations and in the Defence, the Defendant failed to plead with proper particulars in advancing them.  Having considered the Defence together with the letter of 5 March 2009, this court decided by way of case management that the Defendant should be required to set out all the facts she relied upon to support the allegations of misrepresentation, duress and fraud in a witness statement.  An unless order was made on 11 August 2009.

24.  Pursuant to that order, the Defendant filed her witness statement on 27 September 2009.  That witness statement contains no information pertaining to the making of the 2002 Will except the last paragraph (para.22) where the Defendant said the attesting witness did not see the Deceased signing the will.  The rest of the witness statement deals with the relationship between the Defendant and the Deceased and the circumstances leading to her bringing the Deceased to the United States for eye treatment.  The Defendant also alleged that the Plaintiff ill-treated the Deceased.  And after the Deceased returned from the United States to Hong Kong in December 2001, according to the Defendant, the Deceased died suddenly.  She also alleged that the Plaintiff refused to co-operate in having a DNA test for Tsz Chik after the death of the Deceased.

25.  Even though as party propounding the 2002 Will the Plaintiff bears the legal burden of proving it was the will of the Deceased, the Defendant bears the evidential burden of setting up her grounds of challenge, see Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387.  In other words, the Defendant has the evidential burden of adducing evidence on fraud, misrepresentation and duress.

26.  At the trial, the Defendant adopted the letter of 5 March 2009, her witness statement of 27 September 2009 and her Written Request and Submission of 17 March 2010 as her evidence.  Having considered all her evidence, I cannot find any material supporting the allegations of misrepresentation and duress.  There is no suggestion as to what misrepresentation had been made to the Deceased, by whom was it made and how such misrepresentation led to the making of the 2002 Will.  Likewise, there is no suggestion as to what form of duress had been exercised upon the Deceased and by whom was such duress exercised.

27.  As regards the allegation of fraud, there is no suggestion in the Defendant’s evidence of fraud practised upon the Deceased leading to his execution of the 2002 Will.  Her challenge to the 2002 Will in substance revolved around the authenticity of the 2002 Will.  This is the only challenge which she managed to produce some evidence.  And I shall discuss later whether she has discharged the evidential burden commensurate with the charge required by the law as discussed in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387.

28.  Apart from the challenge as to authenticity (which I shall deal with below), I hold that the Defendant’s attack on the 2002 Will based on fraud, misrepresentation and duress failed by reason of lack of evidence.

The authenticity of the 2002 Will

29.  As held by the Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, a party advancing a case of forgery to challenge a will bears the evidential burden of adducing evidence sufficiently cogent and probative to raise such an issue.

30.  What evidence has the Defendant put forward to challenge the authenticity of the 2002 Will? She did not adduce any handwriting expert evidence.  Instead she relied on the following,

(a)     the difference in the last character (the word “Shing”: written as “勝”) in the signature of the Deceased in the 2002 Will as compared with the other documents signed by him, including the earlier wills (where the character was written in simplified form as “胜”);

(b)    the fact that the attesting witness did not see the Deceased signing the 2002 Will;

(c)     her own evidence that the 2002 Will was not in the Deceased’s handwriting;

(d)    the 2001 document and her evidence as to the wish of the Deceased regarding the Xiamen property.;

(e)     her evidence as to the poor relationship between the Deceased and the Plaintiff and the good relationship between her and the Deceased.

31.  In her Written Request and Submission, the Defendant placed emphasis on the first three points.  The issue of authenticity is a question of fact and the court must have regard to all the relevant evidence before it reaches a conclusion.  Thus, I also take into account the last two points in deciding whether the 2002 Will is genuine.

32.  I start by considering the Defendant’s contention based on the letter written by the attesting witness, Mr Chan, to her on 22 July 2003.  In the letter, Mr Chan described how he came to sign on the 2002 Will as attesting witness.  What he said in the letter was repeated by him in his evidence given at the trial.  He was called as a witness by the Plaintiff.

33.  Mr Chan came to know the Deceased through the latter’s brother (who had been Mr Chan’s teacher).  He also acted as an attesting witness to the 1999 Will.  In 2002, Mr Chan learnt from the brother that the Deceased wanted to revise his will.  The Deceased contacted Mr Chan by phone and suggested to have the Plaintiff to bring the revised will to Mr Chan for his signature.  Mr Chan responded by saying he could go to the Deceased’s home instead.  Then on 19 March 2002, Mr Chan phoned the Deceased asking if he could come on that date.  The Deceased told him to come over.

34.  When Mr Chan arrived, the Deceased greeted him and he was still writing something on the 2002 Will.  Mr Chan sat on the sofa next to the Deceased but he did not pay attention as to whether the Deceased was writing the contents or signing.  The Deceased then checked the document by using a magnifying glass.  Afterwards, the Deceased handed over the 2002 Will to Mr Chan for his signature.  When Mr Chan got it, he noticed the Deceased’s signature was there.  Mr Chan read the document and he signed as a witness on the 2002 Will.

35.  After he signed, Mr Chan had a conversation with the Deceased.  In the course of that conversation, the Deceased indicated to Mr Chan he wished to sell the Xiamen property and he had construction plan for it.  He asked Mr Chan to introduce purchaser to him.

36.  Even though the Deceased’s health did not appear to be as good as he was on the previous occasion when they met, Mr Chan said he still looked alright.  Mr Chan disagreed with the Defendant’s suggestion that the 2002 Will was not in the Deceased’s handwriting.

37.  Mr Chan was very firm that the Deceased was writing on the document in his presence.  Though he could not be certain whether he was signing, he could not say the Deceased did not sign in his presence.

38.  His letter to the Defendant was written in 2003 because he was informed that she wanted to learn about the 2002 Will.  The contents of the letter were consistent with his evidence given at the trial.  Though he failed to mention in the letter that the Deceased did write on the document after he had arrived on 19 March 2002, he did not say categorically that the Deceased did not sign the 2002 Will in his presence.

39.  More importantly, Mr Chan stated in the letter that it was the Deceased who asked him to witness the 2002 Will for him and the document was handed by the Deceased to him for attestation.  Before that he did so, the Deceased had checked the document by using a magnifying glass.

40.  Plainly, the tenor of Mr Chan’s letter was that the 2002 Will was a genuine one.  It is fanciful that the Deceased would hand over a forged will to Mr Chan for the latter’s attestation. 

41.  I find Mr Chan to be an honest and reliable witness.  He has no personal interest in the matter and his evidence is consistent with what he had stated in his letter to the Defendant.

42.  The Defendant said the 2002 Will was not in the handwriting of the Deceased.  As mentioned, she did not adduce any handwriting expert evidence.  Though non-expert opinion by someone familiar with the handwriting of the person concerned on the genuineness of a signature or a piece of handwritten document is admissible (see Section 17 of the Evidence Ordinance; Phipson on Evidence 15^th Edn paras.37-73; Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at p.404 para.18), the weight to be attached to such evidence is a matter for the court.

43.  In the context of handwriting expert evidence, the Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 (at para.20) emphasized that the acceptability of such opinion evidence depends very much on the cogency of the reasons for his opinion.  The same must apply to non-expert opinion though one cannot expect a non-expert to express his or her reasons as clear as an expert.  The court must also have regard to the degree of familiarity of the witness with the handwriting in question.  The partiality of the witness is also relevant.

44.  The Defendant said she was familiar with the Deceased’s handwriting since she had corresponded with him over the years.  In the course of her evidence, she only identified one specific feature which she pinpointed as the reason for disputing the authenticity of the signature of the Deceased in the 2002 Will: the different character used for the word “Shing”.  The Defendant did not file any list of documents in this action.  She only produced two copy documents (attached to her Written Request and Submission) bearing the signatures of the Deceased at the trial: the 2001 document and a letter dated 4 September 1994.

45.  The Defendant’s reliance on the difference in the character “Shing” was not raised until her recent filing of the Written Request and Submission.   She did not mention this point in her letter of 5 March 2009 or in her witness statement of 27 September 2009.  Hence, the Plaintiff cannot be criticized for not dealing with the point specifically in her evidence filed before the Written Request and Submission.

46.  Though the Defendant testified that the Deceased had always signed his name by using the simplified character “胜”, apart from the two documents she belatedly produced as attachments to her Written Request and Submission, she had not produced other written documents signed by the Deceased to support her.  In the two earlier wills (viz. the 1994 Will and the 1999 Will), the Deceased also signed by using the simplified character “胜”.  At the same time, I note that in the first line of the 1994 Will as well as the heading and the first line of the 1999 Will, the Deceased wrote his name by using the complicated character “勝”.  

47.  Whilst I appreciate the difference between signing and writing, on the limited evidence produced, I am not satisfied that the Deceased had only been signing his name by using the simplified character throughout his life.

48.  I have dealt with the nature of the 2001 document above.  This document together with the 1999 Will shows that the Deceased’s intention was to ask the two sisters to pay for the reconstruction of the Xiamen property.  When the Defendant was cross-examined about the 2001 document, she agreed that was the Deceased’s intention.

49.  In the course of her own evidence, the Defendant confirmed that she did not agree to pay such costs.  Also, in cross-examining the Plaintiff about paragraph 25 of her witness statement, the Defendant suggested that she had not made any agreement with the Deceased to pay him US$20,000 for the Xiamen property.

50.  The Plaintiff’s evidence is that after the Deceased returned to Hong Kong, he told her the following: in the United States, the Defendant had asked him to bequeath the Xiamen property to the two sisters.  The Deceased agreed on condition that the Defendant would pay him US$20,000.  The Defendant initially agreed but subsequently she asked him to sign a document giving the Xiamen property to her without paying him anything.  The Deceased was disappointed and refused to sign.  That caused him to change his bequest of the Xiamen property in his will in the manner he did in the 2002 Will.

51.  It is not necessary for me to decide whether the Defendant had promised the Deceased to pay him US$20,000 or if that was only raised by the Deceased as a proposal without any commitment by the Defendant.  What is clear, as mentioned above, is that the Deceased had expected the Defendant and her sister to pay for the construction costs.  It is equally clear that the Defendant was not willing to do so.  The evidence did not show any testamentary intent on the part of the Deceased to give the two sisters the Xiamen property unconditionally. 

52.  In this connection, the evidence of Mr Chan about the Deceased’s request for introduction of purchaser of the Xiamen property also shows that the Deceased did not intend to pay for the reconstruction of the Xiamen property out of his own money.  This is consistent with the Plaintiff’s case on the Deceased’s decision to change the provision in his will regarding the Xiamen property after the Defendant refused to pay for its reconstruction. 

53.  The Plaintiff and the Defendant made cross allegations against each other as to the ill treatment of the Deceased.  The Defendant alleged that the Deceased had doubt about his relationship with Lui Tsz Chik and he had asked the Plaintiff to arrange for a DNA test.  The Plaintiff denied that he had made such a request.  A DNA test was actually done posthumously by sample collected from the Deceased at the funeral parlour.  The laboratory confirmed that Lui Tsz Chik is the daughter of the Deceased.

54.  It is quite apparent that the Plaintiff and the Defendant did not get along very well.  There was an occasion when the police had to be summonsed to attend the home in 2001 because there was disagreement whether the Deceased should go to the United States for medical treatments.

55.  The Plaintiff’s evidence is that the Deceased could not afford the medical expenses in the United States and he could have free medical treatment in Hong Kong.  The Deceased himself also had second thoughts about treatment in the United States.  The Defendant promised to bear the expenses for the Deceased.  The Plaintiff encouraged the Deceased to go.  But she was not invited to go with the Deceased and she did not go.

56.  On the other hand, the Defendant denied she had made such promise to the Deceased.  Her evidence was that she only told the Deceased that she lived close to a good medical facility in the United States and he agreed to come.  She said the Defendant acted violently when she was told about it and police had to be summonsed.

57.  Though she had not promised to pay for all the medical expenses, the Defendant said she had bought a one-way first class air-ticket for the Deceased in respect of his trip to the United States.  She also bought a return ticket for the Deceased when he returned to Hong Kong in December 2001.  At that time, she was expecting him to come back in April 2002 for her wedding.  Thus she bought a return ticket for him instead of a one-way ticket.

58.  The Defendant said the Deceased had asked her to produce a summary of the money she spent on his medical costs and air-tickets as he wanted to pay her back.

59.  As it happened, the Deceased did not return to the United States to attend the wedding of the Defendant.  Neither did he repay her for the air-tickets and medical expenses.  However, the Defendant accepted that she had got US$2,000 from the Deceased when he arrived at the United States.  She also got a cheque of about US$2,000 given to him by her sister.  The Defendant said these were given to her by the Deceased voluntarily.  On the other hand, the Plaintiff said the Deceased told her that the Defendant seized the money from him.

60.  The Defendant said the Deceased had always wanted to have a DNA test regarding Lui Tsz Chik and he had told his brother and sisters so.  On the other hand, the Plaintiff said the Deceased told her that the Defendant said to him in the United States that Lui Tsz Chik was not his daughter.

61.  The Defendant also questioned the circumstances leading to the demise of the Deceased.  However, she did not adduce any evidence from the hospital or doctors who were treating the Deceased.

62.  Given the relationship between the Plaintiff and the Defendant, I must consider these cross-allegations cautiously, particularly when there is no independent evidence supporting such allegations.  Apart from those allegations set out above, there are other allegations which are even less material for present purposes.  Bearing in mind that they are not directly germane on the issue of authenticity of the 2002 Will, I would not say more than necessary.

63.  As I see it, the cross-allegations on ill-treatment are only relevant insofar as they shed any light on the relationship between the Deceased and the various potential beneficiaries to his estate.  I do not believe the Plaintiff had treated the Deceased as badly as alleged by the Defendant.  I have no reason to doubt the DNA test.  Having reviewed all the evidence, I do not find it irrational for the Deceased to dispose of his estate as he did in the 2002 Will.

64.  The Plaintiff was married to the Deceased for more than 12 years.  Since she came to Hong Kong with the daughter in 1993, she had always been living together with the Deceased at the Hong Kong property.  The daughter was of tender age.  Apart from working for 4 to 5 years on part time basis at 7-11 store after she came to Hong Kong, the Plaintiff had no independent means.  It was therefore quite rational that the Deceased made provisions for them in his wills.

65.  In the two earlier wills (which the Defendant did not adduce any evidence to dispute as documents reflecting the then testamentary intent of the Deceased), similar provisions were made for the Plaintiff and Lui Tsz Chik.  The only difference between the 1999 Will and the 2002 Will was about the disposition of the Xiamen property.  The Defendant and her sister were disinherited to that limited extent.  At the same time, they were not required to pay for the costs of reconstruction.

66.  I accept the Plaintiff’s account as regards what she was told by the Deceased as to the reason for the revision of his will after the Defendant turned down his request for contributing to the costs of re-construction of the Xiamen property.  That explained the change made by the Deceased in the 2002 Will.

67.  I also accept the evidence of Mr Chan.  His evidence shows that the Deceased had a clear intention to revise the will in 2002 and he approved of the contents of the 2002 Will before he asked Mr Chan to sign as an attesting witness.  As I said, it is fanciful to suggest that the Deceased would give Mr Chan a document bearing a forged signature for his attestation.

68.  Thus, despite the use of a different character “勝” and the other contentions relied upon by the Defendant, I find on the balance of probabilities that the 2002 Will was executed by the Deceased. 

The Plaintiff’s burden of proof

69.  A proponent of a will bears the legal burden of proving on a balance of probabilities with regard to the following,

(a)     The due execution of the will;

(b)    The testator had testamentary capacity when he executed the will;

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

70.  On the question of due execution, Mr Chan was not certain whether the Deceased signed the 2002 Will in his presence.  However, bearing in mind the factual matrix, including the request by the Deceased to Mr Chan to act as an attesting witness, the Deceased’s writing on the 2002 Will and checking the same before he handed to Mr Chan for attestation, and Mr Chan saw that the Deceased’s signature was on the 2002 Will, the Deceased at least acknowledged his signature in the presence of Mr Chan on 19 March 2002 (see Williams, Mortimer & Sunnucks, Executors, Administrators & Probate (2008), Para.12-16).

71.  However the 2002 Will does not comply with the formal requirement of Section 5(1) of the Wills Ordinance Cap.30 as it was only attested by one witness.  Is it valid by virtue of Section 5(2)? That subsection reads,

“A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.”

72.  The standard of proof under Section 5(2) is more stringent than the ordinary civil standard: the court has to be satisfied beyond reasonable doubt that the document in question embodies the testamentary intentions of the deceased, see Cai Guo Xiang v Mok Hang Won Elsa HCAP 13 of 1997, 26 March 2001, Yam J p.6-7.

73.  Applying this more stringent standard, notwithstanding the misgivings of the Defendant regarding the 2002 Will and her allegations against the Plaintiff, I accept the evidence of Mr Chan as stated above.  I also accept the evidence of the Plaintiff as regards the reason why the Deceased changed his will after his return from the United States.

74.  I am satisfied beyond reasonable doubt that the 2002 Will embodies the testamentary intention of the Deceased.  Thus it is deemed to be duly executed under Section 5(2).

75.  As regards testamentary capacity, given that the 2002 Will is rational on its face and deemed to be duly executed, and there is no credible evidence to dispute the mental capacity of the Deceased at the time when it was executed, the court will proceed on the basis that the Deceased was mentally competent, see Williams, Mortimer & Sunnucks, Executors, Administrators & Probate (2008), Para.13-20.

76.  Knowledge and approval is adequately proved by the evidence of Mr Chan.  His evidence (which I accept) is that the Deceased had checked the 2002 Will before he handed the same to him for attestation.  The document was clearly stated to be a will at the very beginning.  Further, the Deceased invited Mr Chan to attest the document as the former’s revised will.

77.  I hold that the Plaintiff has discharged her burden of proof.

Result

78.  In the circumstances, this court pronounces for the force and validity of the 2002 Will in solemn form.

79.  I shall also order the caveat filed by the Defendant be vacated.

80.  As regards the grant of letters of administration, the Plaintiff should make the usual application to the Probate Registry.  She would need to comply with the usual requirements bearing in mind that there is minority interest involved.

81.  On the question of costs, in view of the fact that the signature of the Deceased in the 2002 Will is different and it non-compliance with Section 5(1), I am of the view that the Defendant cannot be regarded as acting unreasonably in requiring the 2002 Will to be proved in solemn form.  Though she did challenge the 2002 Will beyond putting the Plaintiff to proof, I do not see much additional costs being incurred as a result of such challenge.  The trial was completed within one day.  Though the usual order for hostile probate action is costs follow event, in the exceptional circumstances in this case, I will make a costs order nisi that the costs of the Plaintiff be borne by the estate and the Defendant shall bear her own costs.

[1]  The 1999 Will and the 2001 document said so in terms. These documents tend to support the Plaintiff’s evidence regarding the Deceased’s demand to the two sisters to pay for the redevelopment. The Plaintiff testified that it was due to the refusal of the Defendant to finance the redevelopment that the Deceased changed his mind about the disposition of the Xiamen property in the 2002 Will.