HCAP 13/2007
(formerly HCA 1983/2005)
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PROBATE ACTION NO. 13 OF 2007
(formerly ACTION NO. 1983 OF 2005)
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In the estate of CHAN PO CHU (陳寶珠), late of Flat A, 10th Floor, Nos.316-320 Des Voeux Road West, Hong Kong, Widow, Deceased
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BETWEEN
CHAN CHUN PUI
Plaintiffs
and
PANG WOON KAM (彭煥琴)
and
FENG CUIXIAN
Defendant
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Before: Mr Recorder A Ho, SC in Court
Date of Hearing: 5-9, 12-15 January 2009; 17-18 February 2009 and 9 March 2009
Date of Judgment: 24 July 2009
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J U D G M E N T
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1. These proceedings concern two competing wills of Madam Chan Po Chu (陳寶珠).
2. Madam Chan had made several wills during her lifetime. At issue in these proceedings are the ones she made in 2000 and in 2002 respectively.
3. Madam Chan died on 1 March 2004. She was 92 years old. Where appropriate, I will refer to Madam Chan as “the Deceased” in this judgment.
4. Madam Chan was a native of Toi Shan (台山). She spoke the Toi Shan dialect. She also spoke Cantonese but with a heavy Toi Shan accent.
5. During her lifetime, Madam Chan went through two marriages. Her first husband was Lau Wing Cheung (now deceased). Madam Lau Yu Siu (劉如笑) (“Madam Lau” ) was born out of this marriage. Madam Lau is in turn the mother of the Defendant (馮翠賢) and Feng Yiu Sang (馮耀生) (“Yiu Sang” ). They are all natives of Toi Shan.
6. Yiu Sang came to Hong Kong in 1970’s. In about 1989, Madam Lau also settled in Hong Kong. It appears that both Madam Lau and Yiu Sang had stayed with the Deceased for at least some period of time after their arrival in Hong Kong.
7. The Defendant left the Mainland and came to Hong Kong sometime in the late 1990’s. More will be said about the circumstances of her arrival in Hong Kong later.
8. In about 1962, Madam Chan married her second husband Chan Shu Ting (陳樹庭) (now deceased). Chan Shu Ting had an adopted son, Chan Ping Kwan (陳炳焜) (now also deceased).
9. Chan Ping Kwan married Madam Luk Kam Kiu (陸錦橋). They have 4 children, Chan Woon Kam (陳煥琴), Chan Chun Wah (陳進華), Chan Chun Pui (陳進培) and Chan Woon Yin (陳煥賢). Chan Chun Pui and Chan Woon Kam are the two Plaintiffs in this Action, and where appropriate, I will refer to them as the 1st and 2nd Plaintiff.
10. As can been seen, the Deceased was the paternal grandmother of the Plaintiffs, and the maternal grandmother of the Defendant.
11. Of the two Plaintiffs, only the 2nd Plaintiff has given evidence. The 2nd Plaintiff was married in 1972 to Pang Yuen Shing (彭原勝), a Canadian resident. She has settled in Canada since. She changed her name from Chan to Pang and has since been known as Pang Woon Kam (彭煥琴). The Pangs have 3 children and the family live at Hazelwood Avenue, Toronto. Mr Pang’s parents also live with them.
12. One of Mr Pang’s sisters, Madam Pang Chiu Wah (彭超華), has given evidence for the Plaintiffs in these proceedings. I will refer to her as “Madam Pang” . She lives in Hong Kong, but has visited the Pangs in Toronto several times throughout the years. Madam Pang is married and is also known as Mrs Tong.
13. After the 2nd Plaintiff had settled in Canada, her parents and siblings also emigrated within the following few years. They have also taken up residence in Toronto.
14. The 1st Plaintiff married in 1992. His wife, Madam Au Lai Hung (歐麗紅) whom I will refer to as “Madam Au” ,will feature later in this judgment. The 1st Plaintiff, however, has neither given evidence nor filed witness statement in these proceedings.
15. The Plaintiffs’ father, Chan Ping Kwan, passed away in 2007.
The Property
16. Since 1962, the Deceased had become the registered owner of the property at Flat A, 10th Floor, Nos.316-320 Des Voeux Road West, Hong Kong (“the Property” ).
17. It appears that the Property was purchased with money from Chan Shu Ting. Chan died in 1968.
18. The Property was partitioned into 5 rooms on the 10th Floor. The rooms have always been let out to tenants. The Deceased used to occupy a self-contained unit on the roof which was connected by a staircase from the 10th Floor premises.
19. The Property was the single most valuable asset under the name of the Deceased.
The Competing Wills
20. In these proceedings, the Plaintiffs ask the Court to pronounce the will dated 16 November 2000 (“the 2000 Will” ) as the last will of the Deceased.
21. By the 2000 Will, the Deceased appointed the Plaintiffs as executors. According to the terms of the Will, the Property was to be given to the Plaintiffs. In addition, a number of gifts of money were bequeathed to the Deceased’s relatives and a friend of hers. Among the beneficiaries of the monetary gifts was the Deceased’s daughter, Madam Lau. The Defendant, on the other hand, was not included as a beneficiary under this Will.
22. The 2000 Will was prepared by solicitors, Messrs Rowland Chow Chan & Co. As will be seen in more detail, Miss Jess Chan of that firm was the solicitor responsible for the preparation of this Will, who, together with another solicitor of the firm, witnessed the execution of this Will. At the time of making this will, the Deceased was already an elderly lady of 88 years old.
23. The Deceased was reputed to enjoy relative good health until about 1999 when she began to exhibit deterioration of memory. In December 2001, she experienced chest discomfort and was admitted to Queen Mary Hospital (“QMH” ). In addition to receiving treatment for the medical conditions, the Deceased was diagnosed with senile dementia of the Alzheimer’s type.
24. In the few months that followed, the Deceased had been admitted to hospital several times. Her medical as well as mental conditions were documented in a series of medical notes. These notes have been examined in detail in the course of the trial, and will be discussed further in this judgment.
25. The Deceased made a will on 21 May 2002 (“the 2002 Will” ). By this Will, the Deceased appointed the Defendant as the executrix and bequeathed to her, as sole beneficiary, the entirety of her estate. In contrast to the 2000 Will, no other gifts were made in favour of her relatives or friends.
26. The 2002 Will was prepared by solicitors, Messrs Patrick Chan & Co. Mr Lau Koon Tai, a solicitor and Mr Yeung Foo Yin, a legal clerk of that firm were attesting witnesses of that Will.
27. The validity of the 2002 Will is disputed by the Plaintiffs. They contend that in the light of the medical and mental conditions of the Deceased, the Deceased lacked testamentary capacity at the time the 2002 Will was executed. They also contend that the Defendant did not have the requisite knowledge and approval of the contents of the Will.
28. The Defendant, on the other hand, seeks to propound the 2002 Will as the last will of the Deceased, having the effect of revoking the 2000 Will.
29. It should be recorded that although the Plaintiffs pleaded in their Amended Statement of Claim that the 2002 Will was made by the Deceased under the undue influence of the Defendant, that plea was abandoned at the trial.
Legal Principles
30. The applicable legal principles are not in dispute. Mr Kwan, counsel for the Plaintiffs, has referred me to passages in Ribeiro PJ’s judgment in Nina Kung v Wong Din Shin
31. Likewise, insofar as it may be necessary to determine the validity of the 2000 Will, the Plaintiffs bear the burden of proving the same.
32. I would now turn to the evidence. Unless otherwise indicated, the events as narrated in this judgment are my findings.
Relationship with the Plaintiffs before the 2000 Will
33. After marrying Pang Yuen Shing in 1972, the 2nd Plaintiff settled in Toronto. Their 3 children were born there. For almost 30 years before October 2001, the 2nd Plaintiff has never returned to Hong Kong.
34. One after another, members of the Chan family also emigrated to Canada. For a long time, the Deceased had been living on her own at the Property.
35. The Deceased visited Canada twice, the first time in 1985 and then in 1990. During her 1985 visit, she stayed with the Pangs and also with the Chans. That time, her visit lasted about 2 months. On her second visit in April or May 1990, she was accompanied by Madam Pang and they stayed for about a month or two.
36. On both occasions, there were discussions about the possibility of the Deceased’s moving to Canada where she could be looked after by family members. However, that prospect did not really appeal to the Deceased as she disliked the cold winters of Toronto and felt generally uncomfortable about the inability to speak and understand the language. She was content to remain in Hong Kong and believed that she was quite able to look after herself here.
37. I would accept that the 2nd Plaintiff and the Chans had maintained some contact with the Deceased by way of letters and telephone calls. I do not believe, however, that such communications were at all frequent or regular. No correspondence had in fact been placed before the court by the Plaintiffs and in cross examination, the 2nd Plaintiff sought to explain that she had not brought the letters with her to the trial. Despite the explanation, I think it is more likely that there were so few of such letters and telephone calls that whatever contact there might have been could hardly be considered frequent or regular.
38. More importantly, the infrequent communication suggests to me that the relationship between the Deceased and the 2nd Plaintiff or the Chans was not particularly close. This is to be contrasted with the relationship between the Deceased and the Defendant, which is best shown in the series of letters produced at the trial. Those letters clearly demonstrated that over the years the Deceased had always taken the Defendant into her confidence. It is noteworthy that when the letters were put to the 2nd Plaintiff in cross-examination, she had to admit that her own correspondence with the Deceased was not nearly as personal or intimate, but mostly only about some everyday occurrence or something fairly mundane.
39. The Deceased, on the other hand, had also known Madam Pang for a long time. Their acquaintance began soon after Madam Pang came to Hong Kong in the 1980’s. As Madam Pang also spoke Toi Shan, the Deceased used to pay her visits from time to time over the years.
40. As the Deceased was illiterate, she had on occasions requested Madam Pang to read and write letters for her. Also because the Deceased’s Toi Shan accent was not always easily understood, she used to ask Madam Pang to interpret for her when dealing with matters at the bank.
41. It is obvious that throughout the years the Deceased had regarded Madam Pang as a trusted companion. However sometime in 2001, according to Madam Pang, a curious incident has given rise to misunderstanding between her and the Deceased and from thereon, their friendship had come to an end. I will return to this later in the judgment.
The Deceased and the Defendant before the 2000 Will
42. The series of personal letters produced by the Defendant went back to 1993. From them, it can be seen that as early as 1993, the Deceased had already urged the Defendant to come to settle in Hong Kong. She indicated more than once that she was even willing to pay to facilitate the Defendant’s application. The Deceased obviously longed for the Defendant’s company, as she said in one of the letters that there was a great deal on her mind which she wanted to discuss with the Defendant after her arrival in Hong Kong. She wanted very much to have the Defendant by her side to look after her. It also appears from the letters that from time to time the Deceased had remitted money to the Defendant on the Mainland.
43. The Deceased had more than once confided in the Defendant about her dislike for Madam Lau. She also expressed similar antipathy towards the Defendant’s brother, Yiu Sang. She had on occasions reminded the Defendant that instead of sending reply letters to her directly, they should be sent to her neighbour’s address on the 7th Floor. It is obvious that the Deceased did not want either Madam Lau or Yiu Sang to know about her correspondence with the Defendant. The neighbour on the 7th Floor is Madam Tsui Mui (崔妹), a close companion of the Deceased.
44. Three documents have been produced at the trial, respectively dated 7 September 1995, 9 January 1998, and 25 September 1998, all of which are described as the wills of the Deceased.
45. The contents of the 3 wills are different. In the 1995 will, the Defendant was appointed the executrix and was named as the beneficiary of the Property and the residuary estate. Several gifts of money were given to various people. In the January 1998 will, the Defendant was again appointed as executrix. There was however no specific bequest of the Property. But apart from a few monetary gifts, the Defendant was named as beneficiary of the residue of the estate. In contrast, in the September 1998 will, Madam Lau was appointed as executrix. There was no specific bequest of the Property but Madam Lau was named as the residuary legatee which would have entitled her to the Property.
46. Apart from these three documents, there appears to be yet another earlier will but it has not been produced in evidence and apart from some imprecise reference to it in the Defendant’s evidence, little is known about its content (see reference to the earlier will in the Deceased’s letter dated 11 July 1993).
47. It is noted that at the time the will in 1995 and the one in January 1998 were prepared, the Deceased was advised by the same firm of solicitors who also assisted her in sponsoring the Defendant’s application for a one-way permit to Hong Kong. The ground relied on in the application was that due to her age, it was the Deceased’s desire for the Defendant to take charge of the Property bequeathed to her (see the Deceased’s Declaration of 20 January 1998). It would therefore appear that these documents, though described as wills, were intended not so much as true testamentary papers of the Deceased, but rather as supporting evidence for the Defendant’s application to settle in Hong Kong. Indeed, when put to the Defendant in cross-examination, she did not really dissent from that proposition.
48. As for the one in September 1995, it was the Defendant’s evidence that the Deceased had told her that Madam Lau would only be prepared to take the Deceased to the Mainland if the Deceased would make a will in Madam Lau’s favour. In the event, Madam Lau took the Deceased to the Mainland but the Deceased only stayed for a few days. I have to say I find the evidence as to what brought about this September 1995 will wholly unsatisfactory and quite improbable, and would therefore place no weight on it. I believe it likely that, similar to the case of the 2 earlier wills, the Deceased did not truly intend the document to be her testamentary paper, or at least not intended it only to serve that purpose. I am, however, unable to make a more specific finding as to the purpose for which the September 1998 will had been brought into existence.
49. In the circumstances, I do not think I can derive much assistance from the contents of these earlier wills in my determination of the material issues in the present case.
50. The Defendant was issued with a 5-year travel permit to visit Hong Kong. She arrived in Hong Kong on 9 September 1995. She visited Hong Kong again in December 1997, January and August 1998 and February 1999 on a two-way permit.
51. During the Defendant’s visits to Hong Kong, she stayed with the Deceased at the roof-floor unit. The Defendant helped the Deceased with the household chores. The Defendant also cooked, did the laundry, and accompanied the Deceased to tea and on occasions to the clinic. She became known to some of the tenants at the Property.
52. Although she came on a two-way permit in February 1999, the Defendant remained in Hong Kong and subsequently applied to the immigration authority for permission to stay. There is some dispute as to whether the Defendant had all along been living with the Deceased at the Property. My finding is that initially she did upon her arrival in 1999. But as will be discussed further, I believe that she had ceased to stay continuously with the Deceased, at least since sometime in 2001.
53. I have heard evidence from witnesses as to the physical condition of the Deceased. One of the witnesses was the longest-staying tenant on the 10th Floor, Mr Clarke. He and his wife have been staying at the Property since 1990. Mr Clarke was born in Hong Kong and is completely fluent in Cantonese. The other witness is the Deceased’s long-time neighbour on the 7th Floor, Madam Tsui Mui. Madam Tsui and the Deceased had known each other from as far back as 1967 or 1968.
54. From their accounts of the contacts with the Deceased, it is clear that all the time up to at least the latter part of 2001, the Deceased was quite capable of leading an independent life. Mr Clarke testified, which I accept, that the Deceased used to come to the 10th Floor to clean the kitchen, the bathroom and the corridor. She also collected rent from the tenants and issued receipts to them.
55. Also, Madam Tsui recalled that she and the Deceased had had contacts almost on a daily basis. A couple of years before 2000, the Deceased had even helped her look after a small child who was under her care at the time. Also, they often went to tea together in a nearby restaurant.
The 2000 Will
56. Various attendance notes from Miss Jess Chan, the solicitor who prepared the 2000 Will, were produced in evidence. Several drafts of the will showing various amendments were also produced. I accept that the notes have accurately recorded how Miss Chan had dealt with the matter.
57. The Deceased first visited Messrs Rowland Chow Chan & Co. on 16 October 2000. She was accompanied by a young man, Qui Yong Xiang, who identified himself as the Deceased’s great-grandson. Other than certain identification documents showing that he was a resident on the Mainland, little else is known about Qui or what exactly was his relationship with the Deceased.
58. Miss Jess Chan attended to them. The instructions for preparing the will were given almost entirely by Qui with the Deceased merely listening at the side. Qui gave instructions to the effect that he was to be appointed as the executor, and the Property was to be given to him as the sole beneficiary.
59. A land search of the Property was conducted on that day. A draft of the will was later prepared according to those instructions. The drafts bore a date 21 October 2000, indicating perhaps that that was initially the date when the will was expected to be signed.
60. A few days later, the Deceased paid another visit to Miss Jess Chan’s office. She was unaccompanied. She told Miss Chan that Qui had cheated her and she wanted to revise her will. However, as she spoke with such a heavy Toi Shan accent, Miss Chan did not feel comfortable to discuss her instructions especially in view of her complaint that she had been cheated by the proposed beneficiary. Miss Chan asked her to come back another day with someone who could interpret for her. It is Miss Chan’s evidence, which I accept, that the Deceased almost wept when she left the office.
61. The Deceased turned to Madam Pang for assistance. The Deceased must have told Madam Pang about her intention to make a will and why her assistance was required. She asked Madam Pang to accompany her to the solicitors firm the following day. I believe this request from the Deceased had prompted Madam Pang’s telephone call to Miss Jess Chan on 1 November 2000. During the call, I believe Miss Chan had explained to Madam Pang what information would be required for preparing the will, for instance, how the Deceased would like her assets to be distributed and personal details of the proposed beneficiaries.
62. I also believe that after having learnt of the Deceased’s attempt to make a will, Madam Pang felt that she should alert the 2nd Plaintiff and her (the 2nd Plaintiff’s) siblings in Canada. There must have been discussions among them concerning the Deceased’s attempt to make a will, and also how they thought the Deceased’s estate ought to be dealt with, especially in relation to the Property. I have little doubt that the Chans, knowing that the Property was purchased by their grandfather, had always considered themselves to have a rightful claim to the Property, if not the Deceased’s estate generally.
63. This, I find, was the reason why the personal details of the 1st and 2nd Plaintiffs were sent to Madam Pang. It was intended that Madam Pang could relate the wishes of the Plaintiffs to the solicitors and would have the information ready for the drafting of the will.
64. In this connection, I do not accept Madam Pang’s evidence that upon receiving the request for assistance, she accompanied the Deceased to visit the solicitors’ firm the next day. Nor do I accept, therefore, that it was on that occasion that the Deceased had expressed her wish to give the Property to the Plaintiffs. I do not believe Miss Jess Chan would have failed to record such a visit and any instructions that might have been given if there had indeed been such an occasion. Having regard to Miss Chan’s attendance notes, I find it more probable that on learning that the Deceased had wanted to make a will, Madam Pang simply called Miss Chan on 1 November to make general inquiry concerning the will, which in turn prompted Madam Pang to call the 2nd Plaintiff in Canada to discuss the matter.
65. I do not know when exactly the Deceased was consulted. But I believe that at some stage before the visit to the solicitors’ office on 16 November 2000, she had agreed to the arrangement of giving the Property to the Plaintiffs and appointing them as executors.
66. Miss Chan had kept an attendance note recording the Deceased’s visit to her office on 16 November 2000. I believe it was on this occasion that instructions were given to her to substitute the 1st and 2nd Plaintiffs as executors of the will and beneficiaries of the Property. For that purpose, Madam Pang also provided Miss Chan with the personal details of the 1st and 2nd Plaintiffs. At the same time, the Deceased also named various people for whom she would like cash gifts to be provided in her will.
67. The Will was duly prepared and explained to the Deceased. I am satisfied that the Deceased had understood and agreed to its content. It was duly executed by her and attested by the 2 solicitors therein named.
Events After the 2000 Will
68. Madam Pang was asked in cross-examination whether she had discussed the contents of the 2000 Will with the 2nd Plaintiff after it was made. I have to say I find her answer that she had only done so during some casual conversation with the 2nd Plaintiff, unconvincing. It is true that Madam Pang was not a beneficiary under the will herself. But I believe she must have known that the Chans in Canada were anxious to see that the Will was duly executed. I find it far more likely that soon after the 2000 Will was made, Madam Pang had called to assure those in Canada that the Deceased had actually bequeathed to the Plaintiffs the bulk of her estate.
69. It is not disputed that Madam Pang later became the custodian of the 2000 Will. It is Madam Pang’s evidence that sometime after the Will was made, there was an occasion during tea when an envelope had accidentally dropped out of the Deceased’s handbag, which to her (Madam Pang’s) surprise contained the title deeds of the Property as well as the 2000 Will. Madam Pang went on to say that the Deceased explained that she had to carry those documents for fear that they might be stolen from her. Upon the Deceased’s request, Madam Pang agreed to take custody of the documents.
70. While I accept that the Deceased had entrusted the title documents and her Will to Madam Pang for safekeeping, I do not find Madam Pang’s description of the circumstances at all convincing.
71. I have approached Madam Pang’s evidence with caution. Contrary to her endeavours to portray herself as only assisting the Deceased in handling her affairs, I believe Madam Pang had a much larger role to play in helping the Chans to guard against the risk of the Deceased disposing of her properties (particularly the Property) to people other than the Chans. That said, however, I should add that I am not suggesting that Madam Pang did so with any motive of benefiting herself personally.
72. Madam Pang visited Toronto in the summer in 2001. I have little doubt that she and the Chans had discussions concerning the Deceased and her properties. They were obviously aware of the fact that the Defendant had been looking after the Deceased and was very close to her. The Chans were concerned to ensure that they, rather than the Defendant, would eventually be the beneficiaries of the Deceased’s estate, in particular the Property.
73. As already mentioned, because the Deceased was illiterate, she had relied on Madam Pang’s assistance from time to time. There was an occasion in 2001 when the Deceased had to deal with the renewal of her bank deposits upon maturity. It appears that this was not the first time the Deceased had asked for Madam Pang’s assistance in this regard. But on this occasion, Madam Pang advised the Deceased to combine two deposits in different banks into a single sum to earn higher interest. Madam Pang assisted her with the transfer between the banks, and the combined deposit was eventually put into the joint names of the Deceased and Madam Pang.
74. Although I do not suggest that Madam Pang was motivated by personal gain, I have difficulty accepting her explanation as to why she had become the joint holder of the deposit. I do not accept that it was the Deceased who initially asked to have the deposit put under Madam Pang’s sole name, allegedly because of the difficulty previously experienced by the Deceased in withdrawing money from the account on the death of her husband. I find it far more likely that the deposit was placed under their joint names so that Madam Pang would be in a position to know if and when the Deceased wanted to deal with it. I also believe that Madam Pang had shared with the Plaintiffs her knowledge that the Deceased had a deposit in the order of $460,000.
75. Then in October 2001, the 2nd Plaintiff and her husband visited Hong Kong. (I would refer to them as “the Pangs” .) This was their first visit after having emigrated for nearly 30 years. But as soon as they arrived they went straight on a tour to Yunnan on the Mainland. Their visit in Hong Kong only began at the end of October and they stayed for about a week before returning to Toronto in November. While in Hong Kong, they stayed at Madam Pang’s place in Kowloon.
76. The 2nd Plaintiff had visited the Deceased several times at the Property while in Hong Kong. She was accompanied by Madam Pang on one occasion when they also met the Defendant there. On that occasion in the presence of the 2nd Plaintiff and the Defendant, Madam Pang handed the title deeds and the 2000 Will back to the Deceased. This, according to Madam Pang, was because of a misunderstanding between her and the Deceased a few months ago when the Deceased accused her of swapping the Deceased’s $500 and $1,000 notes with $100 notes. Madam Pang felt insulted by the accusation, and she decided to break off her friendship with the Deceased and return the Deceased’s possessions to her.
77. Although I find the account leading to the return of the documents somewhat bizarre, I would accept that there had indeed been some misunderstanding with Madam Pang, and that the misunderstanding had led to the occasion when the documents were handed back to the Deceased as described.
78. In fact, on that occasion, almost as soon as the documents were returned to the Deceased, they were taken by the 2nd Plaintiff, who eventually took the documents back to Canada with her. The 2nd Plaintiff explained that it was the Deceased who asked her to keep the documents. I do not accept her explanation. Nor do I accept her evidence that the Deceased had suggested the Property be transferred into her (the 2nd Plaintiff’s) name but somehow because there was no time for it to be arranged the suggestion was not pursued. What I find more likely is that the Chans had always considered themselves to have a rightful claim to the Property and were always wary of the possibility of the title documents falling into the hands of the Defendant or indeed anyone else. I believe it was the 2nd Plaintiff who asked the Deceased for the title documents and she actually intended to retain them. On the other hand, I believe Madam Pang had wanted the handing over of the documents to be witnessed by others in the Deceased’s presence so that those concerned would know that she had returned all the possessions to the Deceased.
79. In coming to my findings in the preceding paragraph I have also taken into account the fact (admitted by the 2nd Plaintiff in cross-examination) that after her return to Toronto there was an occasion when the 2nd Plaintiff had told the 1st Plaintiff and his wife (Madam Au) that she was in possession of the title deeds of the Property. During that discussion, the 1st Plaintiff cautioned that there would not be sufficient protection simply by having custody of the documents without an actual transfer of the Property. The 2nd Plaintiff then suggested that on Madam Au’s next visit to Hong Kong, she should bring the documents with her in order to facilitate a transfer of the title. Indeed, when asked why she considered it necessary to procure a transfer of the Property, the 2nd Plaintiff admitted that she was worried that someone might persuade the Deceased to change the terms of her Will.
80. Before their return to Toronto, one other thing that the Pangs had done was to have broached the subject with the Deceased of the prospect of her moving to an old people’s home. In fact they had visited one such home in Cheung Chau and found it rather suitable for the purpose. I am prepared to accept that the idea of moving the Deceased to an old people’s home was out of concern for her well being, hoping that she would receive better attention and care than would otherwise be the case if she were to live alone at the Property. However, the idea was flatly rejected by the Deceased.
81. As for the Defendant, I find that she had ceased to live continuously at the Property at least since sometime in 2001. This is evident from the medical notes which recorded the Deceased as living alone as of December 2001. I think it is likely that such information was provided by the Defendant who accompanied the Deceased to the hospital. The fact that the Defendant had ceased to live at the Property is also consistent with the fact that in one of the forms she submitted to the Immigration Department (dated 22 April 2002), an address in Tuen Mun was given as her correspondence address.
82. In this regard, I have considered the evidence that when the 2nd Plaintiff wrote to the Defendant in November 2001, that letter was sent to the address of the Property. I believe what happened was that even though the Defendant was not staying at the Property at the time, she continued to look after the Deceased by visiting her regularly, helping her with some household chores and taking her to see the doctor as and when necessary. It was quite understandable for the 2nd Plaintiff to have sent the letter to the Property and expected it to be received by the Defendant there.
83. In February 2002, Madam Au visited Hong Kong. She brought with her the title deeds of the Property. Whilst in Hong Kong, on 18 February 2002, she took the Deceased to a firm of solicitors where, among other things, an assignment was executed which, if effective, would have operated as a transfer of the Property to the joint names of the Deceased and herself. Although eventually the transaction was revoked apparently because of problems with the Deceased’s signatures, this attempt to procure the assignment was plainly part of the plan of the Chans to secure their title to the Property.
84. In this connection, I do not think the matter should pass without a reference to the 2nd Plaintiff’s explanation of this incident in her witness statement. I have no doubt that her statement to the effect that the title deeds were given to Madam Au in case she might have use of them in Hong Kong and that she and 1st Plaintiff had eventually “agreed to” the Deceased’s suggestion of having the Property conveyed into joint names with Madam Au, is heavily contrived. Such a statement only serves to undermine her general credibility.
85. The Pangs visited Hong Kong again on 19 April 2002. On this occasion, they were accompanied by their son and they all stayed at Madam Pang’s place. On one of the visits to the Property, they found the Deceased having locked herself in her flat. The fire services were summoned, and eventually when the door was opened they found that the stove was still being turned on and the buns were burnt. I accept that this incident had reinforced their concern about the Deceased living on her own at the Property.
86. On 23 April 2002, while having tea with the Pangs, the Deceased did not feel well. Eventually, the Defendant took her to the hospital. The Deceased complained of chest pain and was admitted for treatment. The medical notes recorded that the Deceased was discharged shortly before 10 a.m. on 26 April. It appears that she was discharged in some haste, apparently having only notified the nurses on duty without consulting the doctor. I believe what happened was that the Pangs had wanted the Deceased to withdraw her deposit from the bank. They visited the Deceased that morning and had apparently discussed the matter with her in the hearing of the Deceased’s neighbouring patients in the same ward. After arranging for her discharge, the couple took the Deceased to an eatery for some noodles and afterwards, to the Western District branch of the Hang Seng Bank where the Deceased had kept her account. It should be noted that as of 26 April, the time-deposit had not matured.
87. In the meantime, the Defendant arrived at the hospital and was told by the Deceased’s neighbours in the same ward that she had been taken by her relatives to the bank. The Defendant then met up with her mother, Madam Lau, and they eventually met the Pangs together with the Deceased at the bank. The Pangs said that the money should be transferred to them for safekeeping but Madam Lau and the Defendant disagreed, saying that the money was meant for the Deceased’s eventual departure (百年歸老). The parties had an argument there. I accept that eventually on the Pangs’ assurance that the transfer of the money was only for safekeeping and they did not intend to use it, the Deceased agreed to the transfer of the sum, being $454,690.57. The Deceased signed the relevant documents in the presence of the bank staff.
88. Later that evening, the Deceased discussed the matter with the Defendant and regretted having given away all her “funeral money”. She could not sleep the whole night. The next morning, a report was made to the police which, I believe, was probably initiated by the Defendant. The police called Mr Pang for some inquiry, but had apparently taken no further action on the complaint.
89. I have no doubt that the move by the Pangs to take control of the deposit is but another instance of their plan to keep the Deceased’s properties away from her. I believe they were not only anxious to prevent other people from laying their hands on the money, they wanted also to ensure that the money would not pass to others on the death of the Deceased.
90. A few days later, the Pangs took the Deceased to Cheung Chau to visit the old people’s home. A wheelchair was needed for the Deceased on this trip. The Deceased strongly rejected the idea of moving to the home.
91. The Pangs left for Shenzhen on 1 May and later returned to Toronto on 13 May 2002.
Deceased’s Conditions before the 2002 Will
92. After the making of the 2000 Will, the Deceased continued to visit Madam Pang from time to time until their friendship broke up in 2001. It is worth noting that despite her age, the Deceased was quite able to travel, unaided, from the Western District on the Hong Kong side to Madam Pang’s place in Mongkok. According to Madam Pang, which I accept, the Deceased had no difficulty travelling on her own and even paying bus fares with small change. She was quite smart and alert. They would sometimes have dim sum lunches at restaurants and afterwards Madam Pang would see her off at the bus station. There was nothing that had caused Madam Pang to be worried about the Deceased returning home on her own.
93. Moreover, it was also the 2nd Plaintiff’s evidence (which I accept in this regard) that when she and her husband visited Hong Kong in October 2001, the Deceased was in relative good health. Although there was some impairment in her hearing, she was generally of good spirit and alert. She could even remember the names of her grandchildren. She could go out for meals without the need to use a walking stick.
94. This also accords generally with the evidence of Mr Clarke who said that before the end of 2001, the Deceased’s condition could still be described as good for someone her age. According to him, her condition deteriorated from about the end of 2001. I accept his evidence that since that time there had been occasion of her demanding rent from him twice in a day, forgetting that he had already tendered payment. Also because of his experience of her inability to give him the correct change, he had decided to tender the exact rent.
95. The Deceased was admitted to hospital on 26 November and 11 December 2001 on complaints of chest discomfort. There is evidence to show that by this time the Deceased had exhibited problems with her physical as well as mental conditions. But it seems even then the Deceased was still largely able to maintain a relatively independent daily life.
96. According to the medical notes, the Deceased was examined by Dr Tso of the Western Psychiatric Centre (“WPC” ) (Department of Psychiatry of QMH) on 21 December 2001. It was recorded that the reason for the referral was “losing memory”. The past history elicited by Dr Tso included “progressive deterioration in memory”, “forgot to switch off the stove”, “forgot the way home”, “irrelevant speech”, “mood become more easily irritable”, “no abnormal experience” and “believed that she was harmed e.g. stole all her money, by her grandson”. I believe such information was provided by the Defendant to the doctor.
97. Dr Tso conducted a Mental State Examination (MSE) which showed that the speech of the Deceased was “relevant and coherent” and her mood was “neutral”. Dr Tso, however, recorded the Deceased as having experienced “delusion of persecution – believe grandson will harm her in some way / stole all her money” and her “memory and orientation grossly impaired”. Dr Tso diagnosed the Deceased to be suffering from senile dementia of the Alzheimer’s type.
98. I pause here to note that the Defendant, under cross-examination, had denied being told of the Deceased’s diagnosis. She said that the doctor had only explained to her the drowsy effect of the medication prescribed for the Deceased but did not tell her that the Deceased was suffering from senile dementia. I do not accept her evidence in this regard. As the Defendant was the only attending family member, I cannot believe that the doctor would not have ensured that the Defendant was told of the Deceased’s conditions.
99. On a subsequent examination by Dr Tso on 22 February 2002, the Deceased was found to be less irritable and her speech still relevant and coherent, but her delusion believing that her family had stolen things from her persisted.
100. The Deceased was admitted to TWGHs Fung Yiu King Hospital on 31 March 2002. Her assessment showed that her speech was clear, her emotion calm and behaviour normal. An attempt was made to conduct a test on her cognitive function but it was aborted because of her hearing impairment. On her discharge on 6 April, advice was given that her daily living should be supervised. Her mental function was recorded as “impaired” but her speech “normal”.
101. Her next admission to QMH on 23 April and her discharge on 26 April has already been referred to. She was mainly treated for her heart condition on that occasion.
102. As will be remembered, the Deceased executed the 2002 Will on 21 May 2002. I would regard these contemporaneous medical records as important evidence of her condition at about the time that Will was made. But before I turn to the 2002 Will, it may be convenient to complete the summary of her medical history after May 2002.
103. The Deceased was admitted to QMH on 7 June 2002 again on complaint of chest pain. In the few months that followed, she had been admitted several times to QMH and Tung Wah Hospital mainly for treatment of her heart condition.
104. As for her mental condition, she was examined by Dr Tso at the WPC on 14 June 2002 and her mental state was found to be stable. She was followed up on 12 and 19 November 2002, and on the latter occasion Dr Tony Chan recorded her as saying that her grandson had taken her money. She was unable to tell her age nor the nature of a will. She was unable to carry out a mental test. Dr Chan commented that she was unfit to make a statement or a will.
105. Her treatment at the WPC continued in 2003. Proceedings under the Mental Health Ordinance were commenced in August 2003 and an order was made in January 2004 declaring her to be a mentally incapacitated person.
The 2002 Will
106. I will now turn to the circumstances of the making of the 2002 Will.
107. After the Pangs had returned to Canada, they asked the Defendant to stay at the Property to look after the Deceased, and I believe they paid the Defendant for doing so.
108. About 16 May 2002 or shortly before that, Mr Pang Yiu Cheung of the firm of solicitors who had previously prepared the 1995 and 1998 wills for the Deceased was approached to prepare another will for her. Mr Pang, feeling unable to deal with the matter himself, referred it to his former colleague, Mr Yeung, who was then working as a clerk in Messrs Patrick Chan & Co.
109. The evidence as to the circumstances leading to the making of the 2002 Will is not very comprehensive. First, I find it unlikely, in light of Mr Yeung’s evidence (to be discussed later), that it was the Deceased’s initiative to make a visit to the solicitors with a view to making a will in favour of the Defendant. Nor do I accept the Defendant’s assertion that it was the Deceased who took her to the office of Messrs Patrick Chan & Co in Sheung Wan for that purpose. To the contrary, the inference I draw from Mr Yeung’s evidence is that the call to Mr Pang, and hence the subsequent meeting with Mr Yeung, was initiated by Madam Lau who had wanted a will to be made in her (Madam Lau’s) favour.
110. However, having regard to the relationship between the parties, it is clear to me that the Deceased had always been affectionate to the Defendant, being the one who actually took the trouble of looking after her (the Deceased). I would also accept that the Deceased was apprehensive over the fact that the Pangs had returned to Canada, leaving her with the feeling that she had only the Defendant to care for her.
111. On 16 May, Madam Lau, the Defendant and the Deceased arrived at the office of Messrs Patrick Chan & Co. Mr Yeung, who also spoke Toi Shan, attended to them in the conference room. Madam Lau told Mr Yeung that the Deceased wanted to make a will and would appoint her (Madam Lau) as executrix and name her as the beneficiary of the estate. When Mr Yeung sought confirmation from the Deceased, the Deceased reacted very strongly and said that she would not give anything to Madam Lau. Whereupon Mr Yeung asked what the Deceased would like to do, and the Deceased replied that it should be “written” in favour of the Defendant. Madam Lau was very unhappy. Seeing that, the Defendant suggested that it would be better “for it to be written” in favour of Madam Lau. In this context, I consider it reasonably clear that the reference to “writing” was understood to refer to the disposal of the properties in the will.
112. It also transpired that at some stage prior to any discussion as to the provisions in the will, Madam Lau had inquired with Mr Yeung about the formalities required for transfer of the Property, and what could be done if the title deeds were lost. She also asked about the preparation of a deed of gift and the fees involved. I have little doubt that the meeting with Mr Yeung was initiated by Madam Lau, who obviously wanted the Deceased either to make her an inter vivos gift of the Property or leave her the estate by will.
113. The meeting with Mr Yeung lasted about 2 hours. Mr Yeung said, which I accept, he had not detected any sign that the Deceased was confused. Nor had she given irrelevant or inconsistent responses. Although a bit slow as one would expect of most elderly people, the Deceased was able to communicate with him and understood what he said.
114. Mr Lau was the solicitor in charge. He entered the conference room after Mr Yeung had already finished taking instructions. Mr Lau confirmed the instructions that the Deceased had indeed wanted to give her estate to the Defendant. In his evidence, Mr Lau said that while he could not recall whether he had actually spoken directly with the Deceased, he remembered Mr Yeung speaking to her. He also added, which I accept, that the Deceased’s answers were not made up simply of “yes’s” and “no’s” only.
115. In his examination, Mr Lau was specifically asked whether, given the lapse of time, he was still able to speak from memory as to what actually happened at the meeting. Mr Lau was frank to admit that his recollection of the event was mostly the result of looking at the contemporaneous notes and the deduction as to how he thought must have happened according to his years of experience as a solicitor. That said, however, he did remember the Deceased saying in a very loud voice that she had wanted the Property to be given to the Defendant. I accept Mr Lau’s evidence, I find that that statement was indeed made by the Deceased at the time.
116. The Deceased and the Defendant returned to the solicitors’ office on 21 May 2002. A draft of the will was already prepared, which was explained by Mr Yeung to the Deceased. Mr Lau also confirmed with the Deceased that the content of the draft accorded with her wishes. The Deceased was asked to give a trial signature on a copy of her identity card. She was then asked to sign on the document, which is now the 2002 Will. It was attested by Mr Lau and Mr Yeung.
117. Mr Lau said, which I accept, that there was nothing to alert him that the Deceased was suffering from senile dementia prior to her signing the 2002 Will. He said that if he had been aware of the Deceased’s dementia, he would not have proceeded with the preparation of the will. It transpires from the evidence that neither Mr Lau nor Mr Yeung was aware of the previous wills by the Deceased, nor had they made any inquiry about their existence.
118. On 27 May 2002, the Defendant and the Deceased again called at Mr Yeung’s office. The Defendant said they would like the Property to be transferred to their joint names (the Deceased’s and the Defendant’s). Mr Yeung then confirmed with the Deceased that it was indeed her wish to give half of the interest in the Property to the Defendant. The transaction was, however, not proceeded with because Mr Yeung was subsequently informed by the Social Service Department of the Deceased’s dementia. Mr Lau advised against proceeding with the gift further.
Testamentary Capacity
119. Against such background facts, I now come to deal with the question that lies at the heart of this Action – the Deceased’s testamentary capacity at the time of the 2002 Will.
120. Both parties have adduced expert evidence on the question. They have exchanged expert reports before trial, Dr Cheung Hung Kin for the Plaintiff and Dr Dominic Tak-shing Lee for the Defendant. As it turned out, however, after Dr Cheung had finished giving evidence the hearing was adjourned part-heard and Dr Lee was unable to testify at the resumed hearing. With leave of the court, the Defendant called Dr Chung-kwong Wong, who had adopted Dr Lee’s report with addition of his own views and comments. All three doctors are specialist psychiatrists and they are accepted as experts for these proceedings.
121. As already noted, the Deceased was diagnosed as suffering from Alzheimer dementia in December 2001. The experts do not seriously dispute that the onset of her condition would likely be around 1999, but none of the experts suggest that the Deceased lacked mental capacity at the time she executed the 2000 Will.
122. It also appears from the evidence that the experts are largely agreed on the diagnosis. Although Dr Wong had expressed certain reservation whether apart from memory impairment, there was sufficient indication of the presence of other cognitive disturbances to support a concluded diagnosis of Alzheimer dementia, he did not press it to the point of disagreeing with such diagnosis. The principal difference between the experts therefore lies mainly in the severity of the dementia and the impact of the condition on her ability to comprehend the various matters required for the will to be upheld (as explained in the well-known statement of the law by Cockburn CJ in Banks v Goodfellow
123. On the question of the severity of the Deceased’s dementia, reference has been made to the table, “Clinical Dementia Rating” (CDR). The symptoms exhibited by a patient in the 6 aspects of his/her function (including memory, orientation, judgment and problem solving etc.) helps clinicians to rate the severity of patient’s dementia. As the court in these proceedings is not primarily concerned with whether the Deceased’s dementia should be more appropriately classified as “mild” or “moderate”, it is unnecessary to delve at any length in a discussion as to the actual classification. The rating of the overall condition and the individual aspects, lying somewhere between “mild” and “moderate”, however does serve as some general indication and a helpful starting point for the inquiry as to the impact of the Deceased’s condition on her mental ability for the purpose of making the Will in question.
124. Of the several relevant matters mentioned in Banks v Goodfellow
125. Dr Cheung noted that in December 2001, the Deceased’s memory and orientation was described as “grossly impaired”. He also noted the information as to irrelevant speech, irritability and the finding of persecutory delusion as recorded in the medical notes. Despite the absence of specific examination at the time as to other aspects of her cognitive functions, he considered it highly likely that those functions would be impaired to similar extent. He expressed the view that the Deceased would not have satisfied the Banks v Goodfellow
126. Dr Cheung further noted even though the mood and emotional conditions had become more manageable in subsequent examinations in February and April 2002, the delusion persisted. Dr Cheung stressed that Alzheimer dementia is an irreversible and progressively deteriorating degenerative disease. Any improvement of emotions and behaviour achieved by prescription of medication does not imply that there was any corresponding improvement of cognitive and intellectual capabilities. Despite the occasional transient fluctuations, the condition of the Deceased would generally follow a downward course.
127. Dr Cheung also noted the record of Dr Tony Chan in November 2002 that the Deceased was unable to tell the nature of a will and was assessed unfit to make a statement. Dr Cheung believed that as the Deceased was lacking in testamentary capacity in 2001 and again in November 2002, it could be presumed that she would also be lacking in testamentary capacity in May 2002, given the nature of the disease and the absence of evidence to indicate that the Deceased was experiencing a lucid interval at the relevant time.
128. With reference to a diagram showing the correlation between the complexity of the situation involved and the level of cognition required, Dr Cheung opined that since the task faced by the Deceased as presented by the 2002 Will was “highly conflictual”, a high level of cognitive ability would be required. Dr Cheung did not consider the Deceased to possess the requisite level of cognition required for that task.
129. To consider her cognitive ability at the relevant time, it is relevant to note that the medical notes recorded the Deceased’s memory deterioration of having commenced around 2 years before December 2001. Instances of forgetting to switch off the stove and forgetting the way home were cited as examples of memory impairment. It is also significant to note the assessment of the occupational therapist who, at the beginning of April 2002, described the Deceased’s long-term memory as “fair” but short-term memory “poor”. The basis of such assessment appears to be the Deceased’s ability to accurately give her name, age and address, while on the other hand unable to recall what she had taken for lunch, the latter being in the domain of recent memory function.
130. In this connection, the experts are agreed that patients suffering the disease would exhibit loss of recent memory at the initial stages, and then progressively of memory of more distant events as the degeneration advances.
131. In the case of the Deceased, it is quite apparent that the impairment to her memory function was much more confined to recent events. I accept in this regard Dr Wong’s evidence that the integrity of the Deceased’s long-term memory was the more significant for the present purpose. The ability to appreciate the extent of her properties or the persons whom she should have regard as possible beneficiaries did not so much depend on her having an intact recent memory function.
132. On the other hand, the only substantial asset in the Deceased estate was the Property. Certainly as far as the Property was concerned, it was left to her many years ago and she had been living in it since at least the 1960’s. Moreover, what was disposed of under the Will was simple and straightforward, namely, the entire estate comprising the Property and probably some cash. This is unlike a case of a testator trying to deal with a complex estate which comprises a multitude of properties of different nature.
133. In the course of the examination of the experts, questions were asked as to the connotation of the phrase “grossly impaired” as used by Dr Tso in the December 2001 assessment. While Dr Cheung said the word was likely to have been used to indicate severity, he accepted in his report that the phrase meant that the impairment was “of such a nature and degree as should be noticeable by an ordinary observant person”, in contradistinction to “subtly impaired”. In the end, I do not think the experts were in any real disagreement. I accept that as of December 2001 the Deceased’s memory was indeed impaired to the extent that it would be observable, but such impairment would be confined more to recent events and less so to events in distant past.
134. On the other hand, insofar as Dr Tso’s comment of “gross impairment” extended to the Deceased’s orientation (that is her ability to recognize places, people and time), it is noted that the basis of such assessment has not been expressly identified in the notes. It may be that, as Dr Wong suggested, the assessment was based on the information of her having forgotten the way home. If so, the inability could well be attributable to impairment of her memory, rather than disorientation. I would agree with Dr Wong in this regard that if there had been other instances indicating disorientation, such being material findings would probably have been expressly identified in the notes. I would also accept that the Deceased’s ability to know her own age signifies not only satisfactory long-term memory but also orientation as to time. Therefore, absent clear information to support the comment regarding impaired orientation, I do not find that the Deceased was disoriented as of December 2001. There is no other material to indicate that she had become disoriented in May 2001.
135. On balance, I find that the Deceased’s condition would not have rendered her unable to appreciate that she was disposing the entire estate including the Property by way of her Will.
136. On the next question whether she was able to appreciate and recall those whom she ought to have considered as possible beneficiaries, for the reasons I have already discussed in relation to retention of her long-term memory, I have little difficulty finding that the Deceased was able to comprehend that the Plaintiffs and the Chans would have been among the possible beneficiaries of her estate.
137. In this regard, I have not overlooked the fact that only Madam Lau and/or the Defendant, but not any of the Chans were present at the solicitors’ office on 16 or 21 May. Nor have I overlooked that no provision was made for the Plaintiffs in the 2002 Will, which was a marked difference from the wishes as manifested by the Deceased in the 2000 Will. However, as Dr Wong has pointed with reference to the private letters written to the Defendant over the years, it was characteristic of the Deceased to develop very clear feelings of affection or aversion for people around her. This was indeed vividly demonstrated during the meeting on 16 May by a clear expression of her objection of bequeathing anything to Madam Lau and the desire of making the Defendant her beneficiary.
138. I have also taken into consideration the absence of provision for other friends or relatives. The lack of details in the 2002 Will, according to Dr Cheung, might reflect mental deterioration and lack of full understanding of her overall situation. Dr Cheung further expressed the view that the task faced by the Deceased was “highly conflictual” and therefore demanded a high level of cognitive function. Whilst I would accept the view, as shown by the diagram in Dr Cheung’s report (leaving aside that the diagram was transposed from a discussion concerning patients’ consent to treatment), that a level of cognitive function as is commensurate with the complexity of the task or situation is required, I am unable to agree with the conclusion that the task faced by the Deceased was so complex or conflictual that she did not possess sufficient cognitive ability to deal with it.
139. In this regard, I would accept Dr Wong’s evidence that the cognitive and emotional ability necessary for the Deceased to appreciate the claims to her estate between the two main groups of people (the Plaintiffs or the Chans on the one hand, and the Defendant on the other) was relatively straight forward and simple. I do not find it likely that the Deceased was impaired to an extent as to be unable to retain memory of her relationship with the two groups, or indeed with other relatives and friends at the time of the 2002 Will.
140. Given the Deceased’s disposition of developing clear feelings of affection, I find it more likely than not that as she was being cared for by the Defendant at the time and because of her affection for the Defendant, it was indeed the Deceased’s wish for her Will to be made in favour of the Defendant.
141. Dr Cheung also referred to the presence of persecutory delusion. The basis of the finding of delusion appears to be the Deceased’s complaint that her money had been stolen by her grandson or her family (as recorded in December 2001 and subsequently in February and June 2002). I do not know why this was described as delusion, which presupposes that the complaint was premised upon false beliefs. However, it might be remembered that the evidence revealed that there was an instance of someone called Qui who claimed to be the Deceased’s great-grandson attempting to procure the Deceased to bequeath the Property to him. There might well have been other instances which justified the complaint. I simply do not know whether there was any attempt to verify the Deceased’s complaint at all before the description of delusion was attributed to it, and I make no finding one way or the other in this regard.
142. But even assuming the complaint was properly identified as a delusion, I would accept Dr Wong’s view that the delusion related at most to the grandson and there was nothing to suggest that it had influenced the Deceased’s view of the Plaintiffs, the Chans or the Defendant in deciding whether and how her properties should be disposed.
143. I have also considered the record in November 2002 that the Deceased’s condition was such that she was unable to tell the nature of a will and was assessed unfit to give a statement. I again accept Dr Wong’s evidence that it was probable that the deterioration was aggravated by her physical illness, notably her heart problems, the dioxin overdose causing decreased general condition in June and July 2002, and more seriously the loss of consciousness in September. These were marked deteriorations when compared with her physical conditions a few months before in April 2002. I do not therefore consider the assessment in November 2002 necessarily or sufficiently indicative of her conditions as of May 2002, the time when the 2002 Will was made.
144. For completeness, I should mention that the experts are agreed that the Deceased possessed sufficient cognitive ability to understand the nature of a will at the relevant time, and this is therefore not an issue that needs special consideration.
145. Throughout my consideration of the evidence, I have not lost sight of the principle that the onus of establishing testamentary capacity at the time of the 2002 Will rests with the Defendant. In assessing the evidence, I have taken account of the factual evidence concerning the Deceased’s daily living, the evidence of Mr Yeung and Mr Lau as to their meetings with the Deceased, as well as the documented medical and expert evidence.
146. On balance, I have come to the view that the Deceased did possess sufficient mental capacity needed for making the 2002 Will. I also find that its contents had been adequately explained to the Deceased who knew and approved of them. The 2002 Will was duly executed by the Deceased and it represented her testamentary intentions.
147. As the issue of undue influence has been abandoned, nothing needs to be mentioned in that regard.
After the 2002 Will
148. I do not find the events after the 2002 Will of much relevance to the issues arising in the present case. I do not consider it necessary to deal with them in this judgment.
Conclusion
149. For the foregoing reasons, I am satisfied that the Defendant, as the propounder of the 2002 Will, has discharged all the burden resting on her.
150. I will dismiss the Plaintiff’s claim in this Action.
151. The Court pronounces for the force and validity of the last will and testament dated 21 May 2002 of the above-named Madam Chan Po Chu (陳寶珠), the Deceased, in this Action.
152. As for costs, I will make an order nisi that the Defendant be awarded the costs of this Action, to be taxed if not agreed.
(Ambrose Ho, SC)
Recorder of the Court of First Instance
High Court
Mr Thomas Kwan, instructed by Messrs Rowland Chow, Chan & Co, for the Plaintiffs
Mr Cheung Yiu Leung, instructed by Messrs Wong Yuen Chi & Co, for the Defendant