KWOK SHUK KUEN MARIA AND ANOTHER v. LI WUN AND ANOTHER

CACV 151/2014 and
CACV 72/2015
( Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 151 OF 2014 AND 72 OF 2015

(ON APPEAL FROM PROBATE ACTION NO. 8 OF 2011)

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JUDGMENT
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Hon Yuen JA:

1. CACV151/2014 (“the main appeal”) is the defendants’ appeal from a judgment of Chung J given on 17 June 2014 pronouncing for the force and validity of the will dated 26 April 2010 (“the subject will”) of Kwok Wing Fai (“the Deceased”) who died on 11 June 2010 aged 86 years.

2. CACV72/2015 (“the costs appeal”) is the defendants’ appeal from the judge’s decision given on 19 September 2014 ordering them to pay the costs of a summons they issued on 16 March 2012 seeking an order that the plaintiffs be passed over as executors of the subject will and that Letters of Administration ad colligenda bona be granted to two accountants from the accountancy firm Deloittes (“the passing-over summons”). Leave to appeal the costs order was granted by Lam VP on 2March 2015.

3. I shall first set out the main events briefly in chronological order.

Background

4. The Deceased was born in 1924. Although he came from a humble background and had only a few years of formal education, he was obviously an intelligent businessman. By his early 30's, he had already set up his own business as a sole proprietor importing and distributing eggs, which business (“Shun Hing Hoo”) became very successful.

The Deceased’s family

5. The Deceased married the 1^st defendant Madam Li Wun (“the Wife”). They had 6 children, 2 sons and 4 daughters. The eldest child was the 1^st plaintiff Maria Shuk Kuen (“Kuen”), followed by two sons – the elder being the 2^nd defendant Tak Ming (“Ming”) and the younger being the 2^nd plaintiff Tak Shing (“Shing”) – followed by 3 more daughters Shuk Ching, Suk Wah and Shirley Suk King. Unfortunately the relationships among some members of the family was not amicable, with the two sons on opposite sides. The elder son Ming was supported by the Wife.

The Deceased’s business

6.1. It is not disputed that it was the younger son Shing who helped the Deceased operate Shun Hing Hoo. Ming had set up his own business in 1997, apparently with some financial assistance from the Deceased.

6.2. Shun Hing Hoo operated from shop premises in Wing Lok Street, Sheung Wan (“the Sheung Wan property”). The Wife also sold preserved eggs there.

The property-holding company

7.1. In 1991 the Sheung Wan property was bought by Gold World Investment Ltd (“Gold World”).

7.2. Gold World had an authorised share capital of $3,000,000 divided into 3,000,000 shares. The Deceased held 1,500,000 shares (ie50%), the Wife held 600,000 shares (20%), and the sons held 450,000 shares (15%) each. It would appear that its only business was to hold the Sheung Wan property.

The Mainland properties

8.1. In 2000, the Deceased bought a flat in Lianhe on the Mainland (“the Lianhe flat”) in Shing’s name. Apparently this was bought as a residence for a close female friend of the Deceased.

8.2. In 2003, the Deceased bought another property, in Yunling on the Mainland, in the names of himself and Shing.

8.3. The Lianhe flat and the Yunling property are collectively referred to below as “the Mainland properties”.

The Deceased’s physical condition

9. In 2005 to 2006, the Deceased was diagnosed with bladder cancer.

“The Mainland will”

10.1. There is a document typewritten in Chinese headed “Will” bearing the date “28 June 2009”. The Deceased is referred to as the testator and the document is said to operate upon his death.

10.2. After referring to the Yunling property as being co-owned with Shing, it reads:

“My portion in the above shall be fully assigned to my son Kwok Tak Shing for his management after my death”.

10.3. There was evidence at the trial that the Deceased was not in the Mainland on the date appearing on “the Mainland will”, but the judge made no finding on its validity and it is not directly in issue in this appeal.

The Deceased’s physical condition in 2009

11. In late November 2009 the Deceased was admitted to hospital where he was diagnosed with lung cancer. He stayed in hospital until mid-December 2009.

“The Chinese handwritten will”

12.1. There is a document handwritten in Chinese headed “Will”. It did not bear a date but according to Shing, it was written in January 2010: see his witness statement, 26 July 2012, paras.24-25.

12.2. The document referred to the two properties the Deceased co-owned with Shing. It stated that after his death, the full title “shall be assigned to and managed by” Shing.

12.1. According to Shing, he wrote this document on the Deceased’s instructions and it was signed and finger-printed by the Deceased.

12.4. Pausing there, on the face of this document, both the Mainland properties were bequeathed to Shing.

The Deceased’s physical condition in 2010

13. The Deceased was hospitalized from 25 February 2010 to 24March 2010.

Events in April 2010

14. On 19 April 2010, the Deceased was re-admitted to hospital as the cancer had spread.

15. On 22 April 2010, Joseph Lau Wai Kwong (“Mr Lau”) of Mike So, Joseph Lau & Co, a firm of solicitors, received instructions to prepare a transfer of Shun Hing Hoo from the Deceased to Shing.

16. On 23 April 2010, according to the Wife and Ming, the Deceased spoke to them in his native Hoklo dialect giving instructions that

- the Sheung Wan property should be transferred to them,

- Shun Hing Hoo should be transferred to Shing, and

- the rest of his estate should be divided equally among the Wife and all the children.

This allegation has been referred to in the judgment as “the Hoklo instructions”.

- Mr Lau’s 1^st attendance

17.1. On the same day (Friday), Mr Lau received a telephone call from Shing informing him that the Deceased wished to make a will. That evening Mr Lau visited the Deceased in hospital. According to Mr Lau, he started taking instructions from the Deceased but he did not finish taking full instructions. There were other persons gathered inside the Deceased’s room, and after a while, he (the Deceased) said he would arrange another meeting later.

17.2. Mr Lau’s attendance note for this visit (“the 1^st attendance note”) recorded only the following matters (3/635):

- the shareholding of the company holding the shop premises,

- some of the Deceased’s assets, with the indication that there were other assets, and

- the names of “eldest daughter Shuk Kuen” and “Tak Shing”.

17.3. According to Mr Lau’s testimony at trial, he wrote down “house residence” when taking instructions, but he did not finish as the attendance “suddenly came to a halt” (T/17).

18.1. Mr Lau did however take the opportunity to confirm the Deceased’s instructions for the transfer of Shun Hing Hoo to Shing.

18.2. The next day (24 April 2010), an Agreement for the Sale and Transfer of Business drafted by Mr Lau was signed by the Deceased as vendor and Shing as purchaser at a consideration of $10,000. Mr Lau did not attend the execution of the agreement.

- Mr Lau’s 2^nd attendance

19.1. On Monday 26 April 2010, Mr Lau received a telephone call from Shing saying that the Deceased was ready to give him instructions.

19.2. Mr Lau duly made a second visit to the hospital, where he “took instructions directly from the Deceased”: see his witness statement, 10 November 2011, para. 6.

19.3. The solicitor’s attendance note (“the 2^nd attendance note”) recorded, amongst other things (3/638):

- “8 portions	6 brothers and mother
1 portion to daughter(s)	1½ portions to son(s)	1 portion to mother.

[Pausing here, it is not disputed that the reference to “6 brothers” meant the 6 siblings].

- First	- 8 million	Feng Shui, Graveyard Worship (ancestor, family)
	- 3 million	Shun Hing Hoo (give funds for operation)

- Limited company
		4 sisters		5% S1
		10%		5% S2
	50%	10%
		10%
		10%
First appoint as director			Don’t sell the property”.

19.4. Mr Lau said he did not ask if the Deceased had real property outside Hong Kong (T/22 R) but it was the Deceased’s specific instructions “to divide all his real estate [etc] into eight portions” (T/23 A).

19.5. According to Mr Lau, the Deceased indicated that he wished to sign the will as early as possible, when his condition was still steady. Mr Lau later made an appointment for the will to be executed that evening at 7:30 pm.

19.6. That afternoon however, Mr Lau received a telephone call from Shing saying that the Deceased wished to revoke the gift (of $3million) to Shun Hing Hoo. Therefore, to avoid misunderstanding, MrLau requested that the Deceased’s instructions be reduced into writing and signed by the Deceased for Mr Lau’s verification when he attended the signing of the will later the same evening: see his witness statement, 10November 2011, para. 11.

20. At 7 pm that evening, the Deceased’s oncologist DrTsang examined him and certified that the Deceased was “conscious and rational” and “mentally alert and oriented”.

- Mr Lau’s 3^rd attendance

21.1. About half an hour later, at about 7:25 pm, Mr Lau and a legal executive of his firm arrived at the hospital.

21.2. In view of the telephone instructions revoking the $3 million gift to Shun Hing Hoo, Mr Lau asked the Deceased for his written instructions for the will for Mr Lau’s verification.

- “The Handwritten Instructions”

22.1. Mr Lau was given a document (3/682) in shaky Chinese handwriting setting out the following (“the Handwritten Instructions”):

- “Gold World shares	Daughter(s)			10%	Total 50%
	Son(s)			5%
- Feng Shui 800
- Others share [The rest divided into]		8			portion(s)
	Son(s)	1.5			portion(s)
	Others	1			portion(s)
- Executor(s) Eldest daughter Shing (son)”.

22.2. Mr Lau asked the Deceased to sign the Handwritten Instructions and to date it, which the Deceased did.

22.3. Pausing here, it would be noted that the bequests in the Handwritten Instructions were identical to those set out in Mr Lau’s 2^ndattendance note, save that consistently with the telephone instructions given to Mr Lau, there was no gift of $3 million to Shun Hing Hoo.

22.4. More importantly as will be discussed later in this judgment, the Handwritten Instructions did not include any references to “first appoint as director” or “don’t sell the property”.

23. Shortly afterwards, the Deceased’s cardiologist Dr Fong arrived. Dr Fong checked the oxygen saturation level of the Deceased and noted it was 93%. He was of the view that the Deceased was mentally sound and oriented, and prepared a certificate to that effect immediately after his examination of the Deceased.

The subject will

24.1. According to Mr Lau, he then explained the subject will to the Deceased “clause by clause” (T/25 M).

24.2. Mr Lau said that as clause 1 stated that it was the last will of the Deceased, he “explained to the deceased that if indeed he had made a Will in the past, this present Will will override the others previously” (T/29S-U).

24.3. Further, Mr Lau “specifically ... explained to the deceased clause 5.3 [distribution of the residuary estate], that it would apply to all his residual estate, both real and personal property whatsoever and wheresoever” (T/25 T-U).

24.4. Importantly, when Mr Lau was cross-examined that “the deceased might have the impression that the Will only dealt with properties in Hong Kong”, Mr Lau said (T/26 D-F):

“I did not have such an impression. Because this clause generally handled the residual assets of the attester [testator], so this is the very usual jargon or terms when we explain to the client that that would include all and nothing would be left behind, that would include all real estate or not real estate, everything”.

24.5. Mr Lau said the Deceased did not “show any surprise or things that he had not been told before” and during the course of his explanation of the subject will, the Deceased did not ask him to pause (T/28 E-G).

24.6. Mr Lau testified that at the end of his explanation, he believed the Deceased to have understood it because (T/28 L-N):

“Firstly, the instruction was given by him to me in person, and secondly, he further revealed his instructions to me in writing. And the written instructions correspond with the explanation I gave to him as to his Will. And thirdly, after my explanation, I asked the deceased if he understood and he said ‘yes’”.

24.7. Regarding the phrase “Don’t sell the property” in the 2^ndattendance note (set out in para.19.3 above), Mr Lau agreed that was not reflected in the subject will, and he said he did not specifically explain to the Deceased that that particular intention had not been reduced in the Will (T/31I-K). He also said however that he had not explained to the Deceased that “not selling the shop is included in the Will” (T/32F-G). In other words, he had not said anything either way about the matter.

24.8. Pausing there, it is important to note that the phrase “Don’t sell the property” had not been included in the Handwritten Instructions either (set out in para.22.1 above).

24.9. The Deceased then signed the subject will containing the following contents:

(1) he revoked all former wills (cl.1);

(2) he declared that he was domiciled in Hong Kong and that the will should be construed according to Hong Kong law (cl.2);

(3) he appointed Kuen and Shing as executors (cl.3);

(4) he gave $8m for the purposes of “keeping feng shui” and to keep in good order and repair the graves and gravestones of ascendants (cl.5[1]);

(5) he bequeathed all his 1,500,000 shares (50% of the share capital) in Gold World as follows:

(a) 300,000 shares to each of his 4 daughters (ie 10% of the share capital each)

(b) 150,000 shares to each of his 2 sons (ie 5% of the share capital each) (cl.5[2]);

(6) he divided his residuary estate into 80 shares and bequeathed them as follows (cl.5[3]):

(a) 10 shares to his wife;

(b) 10 shares to each of his 4 daughters;

(c) 15 shares to each of his 2 sons.

24.10. As Mr Lau noted, these bequests corresponded exactly with the Handwritten Instructions the Deceased gave him that evening, which the latter had dated and signed at his request. It differed from the instructions recorded in the 2^nd attendance note in that

- there was no gift of $3m to Shun Hing Hoo (which Mr Lau was told that afternoon the Deceased had decided to revoke) and

- it contained no reference to “first appoint as director” and “don’t sell the property”.

24.11. The Deceased’s execution of the subject will was attested by Mr Lau and his legal executive and it was then given by Mr Lau to the Deceased.

25.1. Although the Deceased’s condition continued to deteriorate, on 1 May 2010 he was discharged from hospital and returned home.

25.2. However on 20 May 2010 the Deceased was re-admitted to hospital and on 11 June 2010 he died.

Post-death events

26. In late June 2010 the subject will was read by Mr Lau to the family.

27. It is not necessary for the purposes of this appeal to recount what transpired afterwards save to record that the judge noted (also for the purposes of the passing-over summons discussed below) that on 3September 2010, solicitors instructed by the Wife and Ming wrote to Shing in connection with Ming’s proposal to sell their shares in Gold World to him, which letter said:

“We are instructed that [the Deceased] died on 11 June 2010, and executed a will on 26 April 2010 (“Will”) prior to his death, which is now valid and enforceable”. (Emphasis added).

However the proposed sale of Gold World shares eventually did not materialise.

28. In December 2010 the Wife entered a caveat. This led to the probate action which was commenced in March 2011. The executors Kuen and Shing were the plaintiffs and the Wife and Ming were the defendants.

Judgment

29. The trial before Chung J took 8 days. The issues were briefly as follows (para. 2, judgment):

(1) whether the Deceased’s true testamentary intentions were stated in the Hoklo instructions, and not in the subject will;

(2) whether the Deceased’s illness and/or treatment had an adverse effect on his mental capacity and/or testamentary intention;

(3) whether Shing had exerted undue influence over the Deceased;

(4) whether by reason of any of the above, the Deceased did not know or approve of the contents of the subject will;

(5) even if the Deceased did know or approve of the contents of the subject will, whether he had not made it of his own free will due to Shing’s undue influence over him.

30. For the reasons set out in the judgment, the judge found:

(1) he disbelieved Ming and believed one of the sisters who said the Deceased had not given the alleged Hoklo instructions at all (paras. 35, 48-56 judgment)

(2) there was no evidential basis or evidence to suggest that the Deceased’s mental agility had been materially impaired (paras. 62- 66, judgment)

(3) there was no valid basis for finding that the Deceased had been unduly influenced(para. 68, judgment)

(4) the Deceased possessed the requisite testamentary capacity, in particular noting that the Deceased had mentioned, and benefitted, all of his immediate family members, he had dealt with his earlier wills, and he had covered all his property wherever located (paras. 62-64 and 75, judgment);

(5) the Deceased knew and approvedof the contents of the subject will (paras.76-82, judgment).

The judge entered judgment for the plaintiffs and dismissed the defendants’ counterclaim.

31. In a decision on costs given on 19 September 2014, the judge ordered the defendants to pay the plaintiffs’ costs on an indemnity basis. There is no appeal against the basis of the costs order.

32. In the same decision, the judge also dealt with the costs of the passing-over summons. I shall discuss this later in this judgment.

Appeal

33. On appeal, Mr Alfred Liang (appearing with Mr Justin Lam) counsel for the appellant/defendants submitted that the judge’s conclusions on undue influence and testamentary intention could not stand for the following reasons (para. 15 of their written submissions):

(a) the judge erred in law and in principle by holding that, in the absence of suspicious circumstances, testamentary intention is conclusively established by proof of due execution. Instead, the judge ought to have considered the totality of the evidence to ascertain whether the Deceased did appreciate what was in the subject will when he signed it;

(b) with respect to the evidence, the judge failed to pay any attention to the fact that the subject will failed to follow the Deceased’s instructions not to sell the Sheung Wan property as recorded in the 2^nd attendance note;

(c) further the judge without providing any specific reasons, failed to acknowledge the weight of the fact that the Deceased had previously made the Mainland Will and the Chinese handwritten will concerning the Mainland Properties;

(d) in finding that Shing was a truthful and credible witness, the judge also wrongly failed to consider and/or give any proper weight to the fact that he was discredited over divers matters in his testimony.

I shall deal with each of these submissions in turn.

(a) Test of testamentary intention

34.1. Mr Liang’s first submission was that the judge erred by holding that, in the absence of suspicious circumstances, testamentary intention was conclusively established by proof of due execution.

34.2. As I understand it, this submission was based on para. 82 of the judgment in which the judge said:

“In the light of the totality of the admissible evidence, I conclude that there was nothing suspicious about the subject will. Due execution of the subject will has been proven. Consequently, apart from testamentary capacity (para. 75 above), I also find the [Deceased] to possess the requisite testamentary intention”. (Emphasis added).

34.3. Mr Liang submitted that passage showed first, that the judge had applied the traditional Barry v Butlin 2 Moo PC 480 two-stage test: ie (1) whether the party challenging the will had shown sufficient facts to “excite the suspicion of the court” and (2) if so, whether those supporting the will had allayed those suspicions.

34.4. Mr Liang submitted that the modern approach since Gill v Woodall [2011] Ch 380 is that the judge should ask himself a single question, ie whether the testator had understood (1) what was in the will when he signed it and (2) what its effect would be.

35. In my view, the modern approach is simpler to understand and apply, but that is not to say that applying the two-stage test was wrong or would lead to a different result. As Lord Neuberger said in Gill at para. 23:

“After all, whether one approaches the issue, as the judge did, in two stages, or whether one approaches it as a single question, as I would have thought was preferable, the answer should be the same”.

36. Second, Mr Liang submitted that the judge’s use of the word “consequently” showed that “the judge effectively regarded the presumption of due execution as conclusive in the absence of suspicious circumstances” (Emphasis added).

37. In my view it is clear that the judge did not think due execution was conclusive. If he did, there would have been no need for him to deal with the matters set out in paras. 76-81 on the issue of testamentary intention.

38.1. Moreover, it is clear law that evidence of due execution raises a very strong presumption of knowledge and approval (which is simply traditional language meaning testamentary intention). As Lord Neuberger said in Gill at para. 14:

“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”. (Emphasis added).

38.2. As far as authority was concerned, his lordship referred to a number of cases (Fulton v Andrew (1875) LR 7 HL 448, Gregson v Taylor [1917] P 256, In re Morris, decd [1971] P 62 and Perrins v Holland [2011] Ch 270) where it was held that when it is proved that a will had been read over to a capable testator who then executes it, the “grave and strong presumption” of knowledge and approval “can be rebutted only by the clearest evidence” (para. 15). (Emphasis added).

38.3. Lord Neuberger further said (para. 16):

“There is also a policy argument ... 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 or would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix ... [I]f judges were too ready to accept such contentions, it would risk undermining what may be regarded as the fundamental principle of English law, namely that people should in general be free to leave their property as they choose ...”.

39.1. In Gill itself, the court found the presumption of due execution was rebutted by the “central feature” in that case, ie the expert medical evidence that the testatrix suffered from agoraphobia with panic disorder, such that when she was away from home and in the presence of strangers, her ability to concentrate and absorb information was inhibited.

39.2. In that case, under the will the testatrix purportedly left everything to a charity about which she had made derogatory remarks during her lifetime, and nothing to her only child who looked after her and with whom she had a close relationship. The evidence showed that the testatrix had not given instructions to the solicitor who had drafted mutual wills for her and her husband (since deceased). The instructions had been given by the husband who was described as a “bully”. The testatrix had never met the solicitor before, and she executed the will in his office where (the judge found) with her medical condition, she would have been suffering severe anxiety at point 8 on a scale of 0-10, such that she would not have been able to follow or understand the solicitor’s explanation. In view of the “very unusual circumstances” of that case, the English Court of Appeal found that the will should have been held invalid for want of knowledge and approval (the court did not deal with the trial judge’s finding of undue influence by the husband).

40. Coming back to the present case, whether one adopted the two-stage test or the one-stage test, the question remains whether the judge was right to find on the totality of the evidence that there was no or no sufficient evidence to rebut the “very strong presumption” that the Deceased understood the contents of the will and its effect.

41.1. In para.76 of the Judgment, the judge specifically referred to the issue of the Deceased’s knowledge and approval of the subject will, and in the following paragraphs (76-81), he examined a series of pieces of evidence on the point.

41.2. I therefore reject the submission that the judge had failed to consider the evidence pertaining to this issue and simply relied on due execution. I shall now deal with some of those specific pieces of evidence discussed by the appellants in their submissions.

(b) The Deceased’s wish that the Sheung Wan property should not be sold

42. Mr Liang submitted first that the judge failed to pay regard to the fact that the subject will “failed to follow the Deceased’s instructions not to sell the Sheung Wan property as recorded in the [2^nd attendance note]”, and that the Deceased’s execution of the subject will, which omitted reference to retention of the Sheung Wan property, showed that he did not have the requisite testamentary intention.

43. It was not disputed that it was the Deceased’s wish that the Sheung Wan property should not be sold. That was after all the location from which Shun Hing Hoo, the business he had founded and left to his son, had been operating.

44.1. However I think it is important to note that there was no evidence that the Deceased thought he could give instructions in a will which could bind the company’s dealing with its property.

44.2. First, it is clear that the Deceased knew very well that the Sheung Wan property did not belong to him personally. Mr Lau’s attendance notes and the Handwritten Instructions show that the Deceased was well aware that it was held by Gold World and that he only held 50%of the shares in the company.

44.3. Second, Mr Liang has suggested complicated legal devices such as setting up an offshore purpose trust, or a Deed of Family Arrangement, to implement the Deceased’s wish that the property would never be sold. However it should be noted that Gold World bought the property in 1991. There were nearly 20 years between the acquisition and the Deceased’s death. There is no evidence that the Deceased had ever sought or accepted legal advice with a view to effectively taking the property out of the company’s hands.

44.4. Third, there is the Deceased’s statement of “First appoint as director” together with “Don’t sell the property” in the 2^nd attendance note. There can be no dispute that the first statement was a company matter, not a testamentary matter. That shows that company matters were also within the Deceased’s contemplation at the time.

44.5. Fourth, it should be noted that in the Handwritten Instructions which Mr Lau had asked the Deceased to write out in order to verify instructions for his will, there was no reference to the Deceased’s wish that the property should not be sold (as, similarly, there was no reference to appointment of directors).

45.1. However the way the Deceased devised the distribution of his shares provided a pragmatic approach to keeping the property as it was.

45.2. As mentioned earlier, the Wife and Ming together held 35%. If, as they had contended, the Deceased’s Hoklo instructions were that his 50% shares in the company would be given to the two of them only, they would then have 85% of the shares in the company. The company would be controlled by them. The Wife and Ming had no interest in Shun Hing Hoo, the business being run from the property. They could cause the company to sell the property against the wishes of Shing.

45.3. That would not be the case if the Deceased’s shares were distributed amongst a larger number of persons, none of whom would have overall control. Under the subject will, each of the four daughters was given shares. That meant that instead of only 3 surviving shareholders (the Wife, and the two sons), there would now be 7 shareholders. As far as the shareholding was concerned as well, under the subject will the end result would be that the Wife would hold 20%, Ming 20%, Shing 20%, and each of the daughters 10%. All the members of the family would now have a stake in the property-holding company. In effect neither the defendants nor Shing would be able to assume control of the company without having the support of at least two of the daughters (who were aware of the Deceased’s wish that the company should retain the property).

45.4. In view of the matters discussed above, I reject the appellants’ submission that the omission of a reference to the retention of the Sheung Wan property showed that the Deceased did not have the requisite testamentary intention when he executed the subject will.

(c) The Deceased’s execution of previous wills concerning the Mainland properties

46. Mr Liang also submitted that the judge failed to acknowledge the weight of the fact that the Deceased had previously made the Mainland Will and the Chinese handwritten will concerning the Mainland properties.

47. Insofar as this submission is directed at the judge’s assessment of the weight of one piece of evidence, it must be rejected as it is well-established that the weighing of evidence is a matter for the trial judge.

48. However Mr Liang’s submission is not only directed to the judge’s assessment of the weight of evidence. His submission was that had the Deceased truly understood clauses 1 (revocation of all former wills) and 5.3 (residuary estate encompassing properties everywhere), “the Deceased would certainly have mentioned that he had already dealt with the Mainland Properties by the Mainland Will and the [Chinese handwritten will]” as there was no evidence that he had intended to revoke those wills and to distribute the Mainland Properties as part of the residuary estate. Therefore, Mr Liang submits, that shows the Deceased did not know or approve of the contents of the subject will.

49. In my view, first the judge was well aware that Mr Lau had not asked the Deceased if he had properties outside Hong Kong or had executed any wills previously. He said “it is true that more careful probate practitioners may have also enquired a testator about these matters. However they do not by themselves necessarily assist (or not assist) either party’s case herein. To avoid doubt, I have borne them in mind when considering the dec’d’s testamentary capacity and intention”: see para. 41.

50. In any event, of more importance is what had been explained to the Deceased before he executed the subject will. The judge accepted Mr Lau’s evidence that he had “specifically ... explained to the deceased clause 5.3 [distribution of the residuary estate], that it would apply to all his residual estate, both real and personal property whatsoever and wheresoever” (T/25 T-U) and that he believed the Deceased had understood it.

51.1. However even if the Deceased was under a misconception that the disposal of the Mainland Properties would be governed by the Mainland Will and/or the Chinese handwritten will and not by the subject will (which misconception Mr Lau had not specifically addressed), that would only be a mistake in the legal effect of some clauses in the subject will, and as a matter of law, that would not invalidate the will.

51.2. This court drew to the attention of both counsel a passage in Theobald on Wills 17^th ed para. 3-016:

“The testator must know and approve of the contents of his will but he need not understand its legal effect. Thus if the testator does know and approve of the contents of his will, it is immaterial that he ... is mistaken as to its legal effect. Moreover a testator cannot approve the words used in his will subject to a condition that they have the legal effect he desires”.

51.3. In Mr Liang’s supplemental submissions, he said (paras. 3 and4):

“To clarify Ds’ position, Ds’ Mainland Properties Argument is not that the Subject Will is invalid as a matter of law by reason of the Deceased’s lack of knowledge and approval with regard to Clauses 1 and 5(3). Ds do not contend that the lack of knowledge and approval of one clause automatically invalidates the whole will. Rather, as explained below, Ds rely on the Mainland Properties Argument to demonstrate that the Deceased did not have requisite knowledge or approval for the whole Subject Will.

It is of course entirely an evidential matter as to whether the testator lacked knowledge or approval for the whole will or only part of the will. Nonetheless, a party challenging a will can properly rely on lack of knowledge or approval of a fundamental or substantial part of the will as evidence that the testator did not know or approve of the will in its entirety”.

52. Mr Liang’s submission pre-supposes that the Deceased would never have changed the bequests under the Mainland Will and the Chinese handwritten will.

53.1. I am not persuaded that there are grounds for that critical assumption.

53.2. First, the beneficiary under the Mainland Will and the Chinese handwritten will was Shing. And as can be seen from the revocation of the $3m gift to Shun Hing Hoo, the Deceased did change his mind and was less generous to Shing in the subject will. The Mainland Properties were valued less than that.

53.3. Furthermore, we have not been referred to any evidence that shows that in the 1½ months between the date when the subject will was signed and his death, the Deceased said or did anything which showed that he thought the Mainland Will and the Chinese handwritten will were still valid.

53.4. In the circumstances, I am not persuaded by the “Mainland Properties Argument” that the Deceased did not know or approve of the contents of the subject will.

(d) Discrediting of Shing in other matters in his testimony

54. Finally it was submitted on behalf of the appellants that the judge had failed to “consider and/or give weight to the fact that [Shing] was discredited over divers matters in his testimony”.

55. However it is well-established that an appellate court would be very slow to interfere with a trial judge’s assessment of a witness’s credibility. A person may be truthful in some parts of his evidence and not truthful in others, and the trial judge, having seen and heard the witnesses and having followed the evidence as it unfolds, is in the best position to assess what weight is to be given to the whole or part of a witness’s testimony.

Order

56. I would therefore dismiss the main appeal.

The costs appeal in the passing-over summons

57.1. On 16 March 2012 the defendants issued a summons under s.36 of the Probate and Administration Ordinance Cap. 10 and the inherent jurisdiction to pass over the plaintiffs as executors and for the grant of letters of administration ad colligenda bona to be issued to two accountants from Deloittes.

57.2. In support of the summons, the defendants adduced evidence of Shing’s dealings with the Yunling property apparently contrary to the terms of the subject will.

57.3. That summons was opposed by the plaintiffs who adduced evidence to challenge or explain the defendants’ evidence.

57.4. On 28 September 2012, Poon J ordered that the passing-over summons be heard immediately after the trial of the probate action. In the meantime, two accountants from KPMG were administrators pendente lite on 20 March 2012 on an application made by the plaintiffs.

58. However at the start of the trial before Chung J, the plaintiffs indicated they would no longer oppose the appointment of the administrators pendente lite to continue after the trial, and irrespective of its outcome. That left the issue of the costs of the passing-over summons.

59. In a Decision on Costs handed down on 19 September 2014, the judge ordered that the defendants should pay the plaintiffs the costs on a party-and-party basis. The reasons were:

(1) up to 3 September 2010 (the date of the letter from the defendants’ solicitors, see para. 27 above), there was no indication that the subject will was under challenge: para. 30 of the Decision;

(2) “it was uncertain whether the plaintiffs could legitimately rely on the subject will” as the probate action was in progress: para.32(1) and

(3) the administrators pendente lite were in place: para. 32(2).

60. The issue of costs is of course a matter for the judge’s discretion. However, with respect,

(1) the defendants had alleged that they only became aware of certain conduct of Shing in July 2011, on which allegation there has been no adjudication;

(2) the judge had failed to take into account the fact that the plaintiffs conceded the summons at the start of the trial with no explanation why that concession was not made earlier (which would have saved costs);

(3) the judge’s reliance on the appointment of administrators pendente lite was misplaced as a matter of law because their appointment would cease upon judgment (Re Wieland [1894] P 262, 263) and it would be impracticable for the defendants to apply for passing-over only after judgment in favour of the plaintiffs.

61. Accordingly this court has to set aside the order. Exercising our discretion afresh, and taking into account the fact that no findings have been made regarding much of the disputed evidence in the passing-over issue, as well as both sides’ acceptance of this court’s proposal that the costs of the parties should be paid by the estate, I would allow the costs appeal, set aside the judge’s costs order in the passing-over summons and substitute it with an order that the costs of both sides for the passing-over summons should be paid out of the estate, the quantum of those costs to be taxed if not agreed.

Hon Chu JA:

62.I agree.

Hon Barma JA:

63.I agree.