CHAN WAN YEE v. CHAN TO FUN

HCAP 2/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 2 OF 2012

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D E C I S I O N

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1.  This is an application by the defendant for stay of execution of the judgment pending his appeal against my judgment given on 10 January 2014.

2.  In my judgment, I declared that the new will, dated 15 October 2005, which consists of three pages, including a back sheet and as exhibited by the plaintiff in CWY-2 in her affirmation filed on 8 August 2012 (“the new will”), is valid and was validly executed by Madam Sin Hing on 15 October 2005.

3.  I also rectified the Chinese characters “洗卿” in the new will to “冼卿” as shown in Madam Sin’s Hong Kong Identity Card and the rectification of the punctuation at the end of sub‑clause 2(iii)(f) of the new will by replacing the “;” with a “.” and that the clause number at the top of the next page be changed from “4” to “3”.

4.  I further ordered the pronouncement of the new will in solemn form and that grant of probate to the estate of Madam Sin be made to the plaintiff.

5.  I also ordered costs of the proceedings against the defendant.

6.  The applicable principles for stay of execution of a judgment pending appeal have been set out by Ma J, as he then was, in Star Play Development Limited v Bess Fashion Management Company Limited HCA 4726/2001, dated 7 June 2002, unreported, between paragraphs 6 to 10.  It is for the defendant to show good reasons for the stay.  The two relevant factors are the merits of the appeal and whether, without the stay, the appeal would be rendered nugatory.

7.  At the trial of this action, the defendant, who was not legally represented, alleged that there were many suspicious circumstances in relation to the making of the new will, but he did not know how to put these in the context of the complicated probate law.  He submitted that as a matter of law, whoever propounded the new will, the court had to be satisfied that all suspicious circumstances were removed.

8.  He further submitted that the plaintiff had not proved the capacity of the deceased to make the new will.  The plaintiff had also not proved the deceased’s knowledge and approval of its content.  He also referred to the errors in the new will which the plaintiff sought rectification in these proceedings.  He also alleged that the plaintiff had, in a family meeting, mentioned an old will made by the deceased dated 28 April 2003 (“the 2003 will”) but not the new will dated 15 October 2005.

9.  He further alleged that the solicitor who helped Madam Sin execute the new will had not explained its contents to Madam Sin.  He also raised a number of other arguments that impinge on the validity of the new will.

10.  I then heard evidence from the solicitor’s clerk, Mr Mak, who took instructions from Madam Sin, deceased, on 15 October 2005 and then drafted the new will for her.

11.  Madam Sin had previously, on 28 April 2003, made the 2003 will at the same solicitor’s office.  She wanted to make the new will on 15 October 2005 to effect some changes to the bequests.

12.  In the 2003 will, she appointed the plaintiff as her executor and trustee.  She divided her estate into 16 shares and distributed them to eight persons who were her children and grandchildren.

13.  In the new will, she wanted to remove two sons from the beneficiaries and reduce the number of shares from 16 to 14.  The number of shares given to the remaining beneficiaries remained the same.

14.  The plaintiff was one of the sons who were excluded from the list of beneficiaries in the new will.

15.  Mr Mak took instructions and drafted the new will for Madam Sin.  He then asked one Ms Luo, a solicitor of the firm, to assist Madam Sin to execute the new will.  He also explained in his evidence how he had made the errors which I rectified in the judgment. 

16.  Ms Luo also gave evidence on her verification of Madam Sin’s identity by checking her Hong Kong identity card and comparing her appearance against the photograph on the card.

17.  Madam Sin referred Ms Luo to the 2003 will and told her the changes that Madam Sin wanted to make in the new will by excluding the plaintiff and another son from being beneficiaries of her estate.  Ms Luo then confirmed with Madam Sin the names of all the beneficiaries and the shares given to them in the new will.  She then confirmed that the plaintiff was the executor.  Finally, she interpreted the contents of the new will to Madam Sin and Madam Sin confirmed the correctness of the same.

18.  Madam Sin then executed the new will and Ms Luo and Mr Mak attested her execution in her presence.  Ms Luo also explained how the errors in the new will had escaped her attention.  She also said, in cross-examination, that Madam Sin was conscious, responsive, capable to understand questions and had clear thinking.

19.  I also heard evidence from the plaintiff who was in the Netherlands when the new will was made by Madam Sin.  After Madam Sin’s death, she retrieved the new will from a safe deposit box which Madam Sin had access. 

20.  I accepted the evidence of Mr Mak, Ms Luo and the plaintiff.

21.  The legal principles governing the propounding of a will is well settled and has been set forth by Ribeiro PJ in the judgment of the CFA in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at paragraphs 171 to 173: 

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

172. The standard of proof is the balance of probabilities. The proponent of the will must show on a preponderance of the evidence that it is the will of the deceased: Worth v Clasohm (1952) 86 CLR 439, 453; Fuller v Strum [2002] 1 WLR 1097, 1120.

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

(a) there was due execution of the will;

(b) the testator was of testamentary capacity; and,

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

(Barry v Butlin (above); Harmes v Hinkson [1946] 3 DLR 497 (PC))”

22.  Mummery J had also said in Hawkes v Burgess [2013] EWCA Civ 74 at paragraph 60:

“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity.”

23.  Lord Neuberger MR also said in Gill v Woodall and Ors, [2011] CH 380 at paragraph 14 to 16, on the approach for considering a will prepared and read over by a solicitor to a testator:

“14 Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.

15 In Fulton v Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that

‘when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator …’

This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris, decd [1971] P 62, 77F-78B.  Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence’.  This approach was adopted in this court in Fuller v Strum [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2011] Ch 270, para 28.

16 There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge.  Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries.  Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the textatrix was in some way mentally affected so as to cast doubt on the will.  If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.”

24.  The defendant, in his submissions, attack the plaintiff’s case by referring to the errors in the Chinese characters used in the new will for Madam Sin’s name and the absence of Madam Sin’s Hong Kong identity card number in the new will.  Since I accepted the evidence of Mr Mak, Ms Luo and the plaintiff, I therefore accepted Mr Mak’s explanation for the errors and Ms Luo’s explanation of having overlooked the errors.  I therefore found that the new will was indeed the last will of Madam Sin. 

25.  Since I accepted the evidence of Mr Mak and Ms Luo, I was also satisfied that the plaintiff had proved on a balance of probability, that Madam Sin had executed the new will, Madam Sin had the testamentary capacity to do so and she knew and approved of this will.  I therefore found against the defendant on his challenges to the new will.

26.  The defendant now says that he has reported to the police against the plaintiff for suspicious criminal acts being (1) champerty and/or obstruction of justice; (2) fraudulent signatures on the new will and (3) secret and fraudulent conveyance.  He further told the court this morning that he had been advised by a woman Inspector Madam Yik that his complaint is being investigated by the police.  He further said that if the police should decide to prosecute the plaintiff, it is likely that the plaintiff, who is now a permanent resident of the Netherlands, will not return to Hong Kong to face the prosecution.  Hence, even if his appeal should be allowed, it would be rendered nugatory without a stay of execution of my judgment.  However, the applicant’s report to the police has nothing to do with my judgment.

27.  I do not see any real possibility of success in his appeal.  In the premises, I dismiss his application on the ground of lack of merit. 

28.  I also order that the applicant do pay the cost of this application to the plaintiff.