CHAN LAI CHUN v. CHAN TIN LAM

HCA12892/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12892 OF 1996

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J U D G M E N T

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1. Madam Yu Yee Mui ("the Deceased") died a widow on 24 January 1991 of stroke and diabetes. Her daughter, Madam Chan Lai Chun, on 23 July 1993, obtained Letters of Administration to the Deceased's estate, on her affirmation that the Deceased had no other lawful children or issue and that she had been unable to find any Will made by the Deceased. The estate consisted of Flat D, 9th Floor, Union Mansion, Chatham Road South, Kowloon ("the Property"), which Madam Chan Lai Chun sold on 7 April 1994 for $2,450,000.

2. On 12 November 1996, Mr Chan Tin Nam ("Tin Nam") commenced action no.12892 of 1996 against Madam Chan Lai Chun ("Lai Chun"). For the sake of clarity, since they have the same surname, I will call them by their given names. In this action, Tin Nam claims to be the son of the Deceased and as such entitled on her intestacy to half of the estate, along with Lai Chun. He therefore claims half of the proceeds of sale of the Property. Lai Chun's defence to this claim is that Tin Nam was not the son of the Deceased at all but the son of a family friend, whom the family took in when he came to Hong Kong from Fuzhou as a child and is therefore not entitled to a share of the estate on intestacy.

3. On 11 April 1997, Lai Chun commenced HCAP3/1997 in which she seeks revocation of the grant of Letters of Administration and to propound the Deceased's Will dated 10 July 1990, which she says was found after the grant, and indeed after the commencement of Tin Nam's action. Tin Nam avers that the Will was not executed by the Deceased; or that the Will was not properly explained to her so that she did not appreciate that it had the effect of disinheriting him, her son; or that she did not have the necessary testamentary capacity; or that the Will was executed without her knowledge and approval.

4. The two actions were consolidated.

5. The major issue of fact in this case is whether Tin Nam was the lawful and natural son of the Deceased. If he is, then in the absence of a valid will, he is entitled to a half share on the Deceased's intestacy. The Will purports to disinherit him, so the relationship has to be taken into account in considering whether or not it is valid. If, however, he is not the natural son, any criticism of the Will that it is irrational, in that it disinherits a natural son, does not apply. Indeed, if he is not the natural son, then even if the Will is invalid, this will not avail him because he has no rights on intestacy.

6. It is not disputed that the Deceased was the wife of Chan Tso Hang, who died intestate on 1 June 1990. The Property was held in their joint names.

7. The couple came to Hong Kong from Fuzhou Province in the early 1950s. Lai Chun, who is their only daughter, joined them in about 1953 or 1954, as a girl of about nine years of age. Tin Nam came to Hong Kong about a year later as a boy of about five years of age. He lived with the family at various locations in Kowloon for about ten years, during which time Chan Tso Hang taught him the trade of ivory carving, and later stone carving.

8. In February 1961, Chan Tso Hang took the young Tin Nam to the Immigration Department to obtain a juvenile identity card for him, and for this purpose made a declaration that he was the boy's father.

9. Tin Nam left the family home in 1966. He says that he then lived independently and worked in Hong Kong. He was not then married. He lived on his own because he wanted to be independent. He got married in around 1968/1969 in the mainland. His parents sent him money when he got married but they did not attend.

10. Within the family, Tin Nam was known to his cousins by the usual titles which would be applied in Cantonese to a male elder cousin, such as "tong dai lo". At the funerals of Chan Tso Hang and the Deceased, Tin Nam acted as the "filial son" and performed the rites of carrying the mourning banner and "buying water".

11. After the sale of the Property, Lai Chun gave Tin Nam a cheque for $200,000 on 23 May 1994. This came from the proceeds of the sale. According to her, it was a gift in recognition of his having performed the funeral rites, which she could not as a woman perform. According to him, she gave him this money as his entitlement from the estate of the Deceased, i.e. his mother. She did not tell him that this money was his entitlement from the estate. He never asked if the Deceased had left a Will, nor did she tell him that the Deceased had not. Tin Nam for his part says that Lai Chun told him that this was his share of the estate. He said that it was not the correct figure but she said that it was what he could get. He asked her to let him see the Will but she refused.

12. Lai Chun's evidence is that after Tin Nam moved out, the family only saw him rarely. They saw him during some but not all festivals. She married in 1965 and thereafter saw her parents often. She emigrated to Canada in 1985 but after that came back to see them every year. After the Will was made, she took the Deceased to stay with her at her home in Canada from 12 September 1990 to 2 January 1991.

13. Tin Nam by contrast said that he visited his mother often when she was alive, both before and after she went to Canada.

14. I asked Tin Nam if the Deceased had ever said anything about the parents' flat. He said that his mother had told him that if the flat could be sold successfully, half of the proceeds would go to him and his sister and she would keep the other half for her own spending until she died. His mother had told him that his sister would give him his share; he had trusted Lai Chun to do that.

15. In cross-examination, he said that this conversation had taken place after his father had died, at his mother's home. No one else was there. He said that she had repeated this a couple of times when he visited her in the nursing home. At that time, she had said that she would get a flat in Yuen Long where he could live with her, and look after her. She had asked him to give up his job to take care of her. Again, no one else was there.

16. With regard to the condition of the Deceased towards the end of her life, Tin Nam said that the Deceased was, about the time she went to Canada, "rather stupefied because of her age". In fact, he had not known of the trip to Canada; neither the Deceased nor Lai Chun had told him of it.

17. The evidence of the Deceased's state of health from the other witnesses is quite different. Lai Chun herself, her daughters Gigi, Grace and Genia, Lo Kwok Sun (who is Grace's husband), and the cousin Chan Kwok Nam, all say that they saw the old lady in Canada in late 1990. They all say that while she had had a stroke and needed to walk with a stick because of it, there was nothing wrong with her mental state.

18. A cousin, Chan Shui Lam, also gave evidence of his dealings with the Deceased concerning money entrusted to him for her benefit by Chan Tso Hang before his death and his purchase from her of some coral left by Chan Tso Hang. These dealings took place just before the Deceased went to Canada in September 1990. Chan Sui Lam found nothing wrong with the Deceased's mental state at that time.

19. Dr Luk Ching Hon had been the Deceased's attending physician since 1988. He saw her every month before she went to Canada, including on the day she made the Will, though he did not know she was to make it. He said that she had had a stroke; it was not a severe one. Physically, she could walk with a stick and climb onto his weighing scale. As far as he was concerned, she was mentally sound.

20. The evidence about the making of the Will itself comes from Lai Chun and Mr Lee Kwok Wah ("Mr Lee"), who was a clerk to the solicitor who made it, Mr Lai Kwok Kwong ("Mr Lai"). The latter has written a letter stating that it complied with the Wills Ordinance, but it has proved impossible to find him and bring him to give evidence. There was a complaint to the ICAC about this matter; he was under investigation at the time of his letter dated 12 February 1999; he stated then that he was willing to give evidence but he has since ceased to practice and cannot be found.

21. Briefly, Lai Chun's evidence is that she took the Deceased to see the solicitor on 7 September 1990 about her father's estate. Mr Lai suggested that the Deceased make a will. The Deceased agreed and instructed him to prepare it. He asked the Deceased if she had other children, and she said that she had none; she wanted to give all her estate to her daughter. Mr Lai asked them to come back on 10 September, which they did. Mr Lai got the documents and brought in a witness. He started to talk about the Will and said "Now that you have given all your estate to your daughter; do you understand?". The Deceased said that she understood. He asked her to sign and he asked the other person to sign. The Deceased said that she was old and could not sign, so she marked the Will with a cross and the stamp which she used in handling her bank passbooks. The solicitor and the other person both signed.

22. Mr Lee said that he was the solicitor's filing clerk. Mr Lai had called him into the room in the office while he was passing the door. He saw the solicitor and two ladies there. He heard the solicitor explain the contents of the Will to them. Mr Lai said that the daughter was the "administratrix". The Deceased nodded and made an affirmative sound. She put her cross mark and chopped on the Will. Mr Lee and Mr Lai signed as witnesses. Mr Lee signed the paragraph signifying that he had interpreted the Will to the Deceased but in fact he did not do so; he signed at Mr Lai's request without paying any attention to this paragraph.

23. Lai Chun said that after her mother's death, she went to the solicitor to see about the estate. He asked her for the Will but she could not find it among the Deceased's effects. She returned to Canada, heartbroken after the death of her parents. Mr Lai sent her an affirmation for application for Letters of Administration. She signed it at a law office in Canada where a staff member briefly explained it to her. She knew that there had been a Will, so the affirmation was not really accurate; but it said that no will could be found, and she trusted her solicitor, so she executed the affirmation.

24. Ultimately, the daughter Gigi found the Will. That was after the sale of the Property and after the issue of proceedings. The solicitor had asked her to look for it so she went through her grandmother's effects, which had been put in her flat after the sale, and found it among them.

Evaluation

25. Lai Chun herself seemed quite straightforward. She was not shaken in cross-examination. Her affirmation for the purposes of obtaining Letters of Administration was false in that it declared that the Deceased died intestate when Lai Chun well knew that she had made a Will. Her explanation for this is that she relied on her solicitor, Mr Lai, on the explanation made by the clerk to the Canadian law firm where she made the affirmation, and on the fact that it recited that she had been unable to find any will.

26. It is clear that Mr Lai was the sort of solicitor who takes shortcuts. He did not have Mr Lee translate the Will into Cantonese but had him signed as if he had done so. He did not read over the Will himself; he just briefly explained the content of it, though to be fair it is not a Will which needs much explanation. I can well imagine that, faced with a missing Will, he might have advised his client to apply for Letters of Administration rather than for probate on the basis that there was a Will but it could not be found. If the Deceased left no other issue, and there is nothing to suggest that Mr Lai knew anything of the existence of Tin Nam, whether he is a son or not, the effect would be the same either way; Lai Chun would get the whole of the net estate. However, if she had applied for probate, she would have had to apply under rule 53 of the Non-contentious Probate Rules and prove the contents of the Will. She would probably have had to go before a judge. An application for Letters of Administration would be cheaper and easier.

27. In the circumstances and taking into account that Lai Chun was acting on (albeit unsatisfactory) legal advice, I do not see that the falsity of her affirmation, insofar as it is false, weighs against her credibility before me.

28. Lai Chun's various family members were also quite straightforward. There is nothing to contradict their evidence of the condition of the Deceased when they saw her before she died.

29. Mr Cheung, counsel for Tin Nam, has argued at some length against the accuracy of the evidence of Dr Luk as to the Deceased's state of health. There is really no basis for this and I have no doubt that his evidence is accurate, so far as it goes. Mr Cheung's further argument is that it does not go far enough; but that is another matter.

30. Tin Nam obviously feels a considerable sense of grievance that he has not received what he believes he should, from the Deceased's estate. There is no dispute that he lived in family with her from boyhood and was taught a trade by her husband and there is no dispute about the role he played at their funerals. However, when he comes to tell me of his relationship with and observation of the Deceased in later years and what he says she told him about his inheritance, that has to be viewed with suspicion, because none of it appears in his witness statement. Where there is a conflict of evidence between Lai Chun and Tin Nam, I prefer the evidence of Lai Chun

Tin Nam's relationship to the Deceased

31. I have indicated above the facts which are not in dispute about Tin Nam's relationship with the Deceased and her family, and what he did at the funerals.

32. I have not heard any expert evidence as to whether the names such as "tong dai lo" would not be used for a foster son, or whether a foster son would not be allowed to perform the funeral rites. I do not think these matters assist much on the question of whether Tin Nam was a natural son. He lived in the family from boyhood and it would not be unusual in any family and in any culture for someone in this situation to be addressed as if he were a natural son and carry out at least some of the functions of a natural son. It is not unusual in any culture, where some kind of custom is to be followed and the right person cannot do some act, to get some other person to stand in for him.

33. It is, however, also to be noted that on his own evidence, he moved away from the family at the age of 17. This was a traditional Chinese family. Generally in traditional Hong Kong Chinese society, a son will stay at home with the parents until he marries. This is common knowledge. Nowadays, of course, young people may be more likely to move out and seek independence, but it is still the norm for a son to stay at home. Tin Nam moved out in 1967 or thereabouts when traditional values were no doubt stronger than they are today.

34. While Tin Nam's evidence is of a close relationship with the Deceased, as I have indicated, this cannot be accepted as reliable because the details were never disclosed before trial but seem to be a matter of recent invention. If he had been so close to her, he would surely have known when she went to Canada.

35. Mr Cheung says that Chan Tso Hang's declaration to the Immigration Department shows that Chan Tso Hang accepted Tin Nam as his son, and that the presumption of legitimacy would apply. If Tin Nam was the legitimate son of Chan Tso Hang, he would, by the definition in section 2 of the Intestate Estates Ordinance, Cap.73, be the lawful and natural son of the Deceased also, for there is no dispute that there was a lawful marriage between them. He has referred me to the case of Kwan Chui Kwok and Anor v. Tau Wai Chun & Ors, [1995] 1 HKC 374.

36. The facts of that case were not dissimilar to those in the instant case. The facts were found to raise the presumption of legitimacy. The learned judge found no evidence to displace that presumption.

37. Before me is the evidence of Lai Chun herself. She came to Hong Kong about a year before Tin Nam. She would have been left, as he says he was left, back home in Fuzhou when her parents came to Hong Kong. She would surely then have known then that she had a little brother, if she indeed had one. Further, Tin Nam would surely have been able to remember his big sister, who would have left when he was about four, even if he could not remember his parents who left when he was a baby; curiously enough he makes no mention of this.

38. Lai Chun says that her parents told her that Tin Nam was the son of friends. I accept that what her parents told her is hearsay but I cannot see why, if it were not true, the parents would say it within the family. Normal parents will not tell their daughter that her little brother, i.e, their only son, is someone else's child that they have taken in.

39. I can see why Chan Tso Hang might have made a false declaration to the Immigration Department when the time came for the boy to have a juvenile identity card. I do not know what would have been required to obtain resident status for the boy if Chan Tso Hang had not made this declaration, but I expect that to make the declaration was by far the easiest course of action.

40. I accept Lai Chun's evidence. It is sufficient to displace any presumption of legitimacy which may arise from the actions of Chan Tso Hang. For the purposes of these proceedings, Tin Nam must prove on the balance of probabilities that he is the lawful and natural son of Chan Tso Hang or of the Deceased. I find that he has not proved this.

The Deceased's state of health in late 1990

41. All the evidence, including that of Dr Luk, points unerringly to the Deceased's having been a mentally sound woman of 73 years or so. She had had a stroke in 1988, which left her with some weakness on her left side but she had recovered well and could walk with a stick.

42. It is well known that a person who suffers a stroke may be affected as to speech or as to movement on one side of the body, but remain perfectly clear and rational in the higher mental processes.

43. Dr Luk says, and I accept this, that the stroke would have had no bearing on her mental function. He also says that he thought she was mentally sound when she gave her history of travel and the like.

44. I have been referred to a passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 1993 edition, at page 163 to the effect that :-

"At a casual interview, old people may give every appearance of being capable of making a will although in fact, they lack the capacity."

The argument seems to be that because someone is old, he or she must be presumed to suffer from dementia and to lack the capacity to make a will. However, in every case, one must look at the individual. In this case, there is simply no evidence from any quarter to suggest any unsoundness of mind on the part of the Deceased.

45. Dr Luk was not just someone who had a casual interview with the Deceased. He was her attending physician and had been for some time. If anyone was in a position to gauge her mental capacity, it would be he. It is obvious that he found her, and indeed her other family members found her, to be mentally sound around the time when she made the Will.

46. I find that the Deceased was mentally sound at the time of making the Will.

The making of the Will

47. The Will itself is a very simple one. It appoints Lai Chun executrix and leaves all the testatrix's property to her absolutely. On the face of it, it has been regularly executed. There is evidence of its execution from the witness, Mr Lee, and from Lai Chun.

48. There is an apparent discrepancy between Lai Chun's evidence and that of Mr Lee as to what was said to the Deceased by way of explanation of the terms of the Will but I doubt that Mr Lee's evidence can be taken as accurate as to detail, given that he was only a filing clerk called in to provide a signature and would have no particular reason to remember the incident in detail.

49. It is quite clear that Lai Chun took her mother to see the solicitor about her father's estate. The solicitor sensibly suggested that the Deceased make a will. She said that she wanted to leave everything to her daughter. About the time when she executed the Will, though it was not read over to her, the solicitor told her that she had left everything to her daughter.

50. There seems now to be no real dispute about the formal validity of the Will. Counsel for Tin Nam said that while he did not concede it, he would not take this point. There is no evidence to contradict due execution. While the Will was only found after the commencement of proceedings, there is no evidence to suggest that it might have been forged at that time.

51. I am satisfied that the Will was executed in the manner described and that before it was executed, its effect was explained to the Deceased albeit very simply and briefly.

Substantial validity of the Will

52. I turn to the questions of whether the Deceased had the necessary testamentary capacity, at the time she made the Will, and whether she knew and approved its contents.

53. The classic case on testamentary capacity is Banks v. Goodfellow (1870) LR 5 QB 549. Cockburn CJ delivered the judgment of the court. As to the testator's power to dispose of his property, he laid down a three-part test at page 565 :-

"... that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

It is presumed that a testator was of sound disposing mind when he made his will. If the question of his testamentary capacity is contested, the onus lies on the person propounding the will to prove testamentary capacity on the balance of probabilities. However, if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. See Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, (supra), at page 169; Symes v. Green (1859) 1 Sw.&T. 401; Sutton v. Sadler, (1857) 3 C.B. (N.S.) 87, 98.

54. On my finding, Tin Nam was not the Deceased's son. The claim of a son was not one of those which the Deceased ought to have been able to comprehend and appreciate. The Will is in no way irrational because it leaves him out. It is argued that he nevertheless, because of his relationship with the Deceased, had a claim to which she ought as a matter of moral responsibility to have given effect and that she ought to have been able to comprehend and appreciate that claim. Given that he was not a natural son, I cannot see that he would have had such a claim.

55. I have been referred to various cases and texts on the "golden if tactless rule" that when a solicitor draws up a will for an aged testator or one who has been seriously ill, it should be witnessed or approved by a medical practitioner who ought then to record his examination of the testator and his findings. See Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, (supra), at page 164; Kenward v. Adams [1975] CLY 3591 and Re Simpson [1977] 121 SJ 224.

56. It seems that in both the cases cited there were previous wills which were to be altered. In Simpson, the testator was suffering from Parkinson's disease and knew he was going to die.

57. I was also referred to Ma Po Chim v. Mar Lok Shan, [1992] 2 HKLR 286 as authority for the proposition that a doctor should carry out tests of testamentary capacity on an old and sick testator. Again, in that case, there was an alteration of an earlier will and the testator was in hospital, on a drip. He was in a "catabolic or wasting stage" and "slowly losing ground though his condition was rather stable".

58. If a person is old and sick, precautions must be taken to make sure that he has the soundness of mind required for testamentary capacity, especially where there are circumstances which arouse suspicion such as the alteration of an earlier will and the benefit to a particular legatee who is involved in the making of the will.

59. The point is, I think, that there must be something to show that such precautions are needed. There is no presumption that if someone is old, he must be sick or mentally incompetent. There must at least be something to suggest mental incompetence. In this case, I have heard no evidence to suggest it, except that of Tin Nam himself; and that is contradicted primarily by Dr Luk.

60. It is true that Lai Chun was to be the sole beneficiary. Where a person who writes or prepares a will under which he takes a benefit, this is regarded as arousing the suspicion of the court. See Barry v. Butlin (1838) 2 Moo PCC 480 where in delivering the judgment of the Privy Council, Parke J said at page 482 :-

"That if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."

This principle was extended by Tyrrell v. Painton [1894] at page 151, where Lindley LJ said at page 157 :-

"The rule in Barry v. Butlin (1838) 2 Moo PCC 480, Fulton v. Andrew (1875) LR 7 HL 448, and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instruction of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."

61. So in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, (supra), at pages 173-174, the learned authors suggest that suspicion should be aroused where :-

"... a person may be instrumental in obtaining a will when he suggests terms benefiting himself and accompanies the testator to a solicitor of his own choosing, especially if he remains present while the instructions for the will are given."

62. Here, on the evidence, Lai Chun took the Deceased to the solicitor but there is no evidence to suggest that she suggested the terms of the Will. She did, however, remain present while the instructions were given.

63. I have been referred to various authorities on the proper conduct of a solicitor when taking instructions for and making a will. No doubt Mr Lai could and should have been more careful. But there is nothing to suggest that he should have been put on his inquiry as to the Deceased's mental state. He himself suggested that a will be made; as far as he was concerned, the Deceased was an old lady, apparently sound in mind, with an only daughter to whom she wanted to leave everything. Ultimately when the Will was to be executed, he told the Deceased what its effects were.

64. There is no evidence to suggest that the Deceased was of unsound mind when she made the Will. There is affirmative evidence that she knew and approved the contents of the Will. There is nothing to contradict that evidence. I am satisfied that she had the necessary testamentary capacity and that she knew and approved the contents of the Will.

Result

65. The claim of the plaintiff, Chan Tin Nam in HCA12892/1996 is dismissed with costs to the defendant, Chan Lai Chun, to be taxed if not agreed.

66. As claimed in HCAP3/1997, there will be judgment pronouncing for the force and validity of the last Will and testament of Yu Yee Mui, the Deceased in this action, dated 10 September 1990.

67. The Letters of Administration No.3886 of 1993 dated 23 July 1993 will be revoked.

68. The counterclaim of the defendant in the probate action, Chan Tin Nam, is dismissed.

69. Costs in the probate action be to the plaintiff, Chan Lai Chun, to be taxed if not agreed.

70. In both cases, the costs of Chan Tin Nam are to be taxed in accordance with the Legal Aid Regulations.