CHOY PO CHUN AND ANOTHER v. AU WING LUN also known as AU WING LUN WILLIAM

CACV 177/2017

[2018] HKCA 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2017

(ON APPEAL FROM HCAP NO 7 OF 2010)

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J U D G M E N T

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Hon Cheung JA:

1.  I agree with the judgment of Kwan JA.

I.     The role of a solicitor in the preparation and execution of a will

2.1  As this appeal touches on the role of a solicitor who prepared and attested to the execution of a will by a testator who was elderly and not in good health, I would like to add the following views of my own.  The role of such a solicitor is particularly important in a society like Hong Kong where the population is ageing and more people have shed their traditional mindset of not having a will prepared during their lifetime on superstitious grounds.

2.2  It has been repeatedly said in the authorities that the fact that a will is prepared by a solicitor and is, on the face of it, properly executed by a testator in front of the solicitor after having had the contents read over to him provides strong evidence of the testator’s knowledge and approval of the contents of the will and represents the testator’s intention at the moment he executes the will.  Hence in Gill v Woodall [2010] Ch 380 Lord Neuberger MR held that :

‘ 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.

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

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

2.3  In view of the importance that the Court attaches to a will which has been executed before a solicitor in this way, proper groundwork should be undertaken by the solicitor who is charged with this task.  The solicitor should not regard the task as merely a formal act.  Although in Hong Kong instructions to prepare a will may often be given by the adult children of the testator who is elderly and not in good health, it behoves the solicitor who wishes to discharge his duty properly to meet the testator personally for the purpose of taking instructions or confirming the instructions.  He should do this well before the day appointed for the execution of the will which by then is already prepared on the instruction given by someone other than the testator.

2.4  The enquiries made by the solicitor at such an appointment should, subject to the circumstances of each case, include the following, namely,

1)  the age of the testator,

2)  his health condition,

3)  whether he has a surviving spouse,

4)  the number of children and grandchildren he has,

5)  whether there is someone other than his immediate family member dependent on him for support,

6)  the beneficiaries he would like to provide for in his will,

7)  his properties,

8)  whether he has made a previous will,

9)  whether he understands the new will will revoke the previous will,

10)  whether he understands the difference between the new and the previous will.

2.5  The list is of course not exhaustive and the extent of the inquiry will depend on the circumstances of the case.  In the case of an elderly and infirm testator, the solicitor should also follow the checklist referred to in paragraph 40 of the Chow J’s judgment below, namely, the checklist set out in the ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ published by the British Medical Association and the Law Society designed to ascertain whether the testator is capable of ‘understanding the nature of the act and its effects’, ‘understanding the extent of the property being disposed of’ and ‘able to comprehend and appreciate the claims to which a person making a will ought to give effect’.

2.6  The solicitor should ensure he follows the ‘golden rule’ referred to by Templeman J in Kenward v Adams (1975) The Times 29 November 1975, namely, when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.

2.7  While it is accepted that the golden rule does not lay down the law and merely contains prudent guidance for solicitors (Hoff v. Atherton [2005] WTLR 99 (C.A.) at [49] and In re Key, Decd [2010] 1 WLR 2020 at [7]), the words of Briggs J in In re Key, Decd are worth repeating :

‘ 8 Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.’

II.   The present case

3.  In this case, the testator was already 92 years of age at the time when he made the will, was living in a care home and showed physical signs of infirmity; this cried out loudly for more detailed enquiry to be conducted by the solicitor.  Regrettably this has not been properly done in the present case.  The reliance by the Judge on the execution of the will by the testator before the solicitor and his trainee was therefore misplaced.

III.   Training

4.  I would further urge the local law schools and the Law Society to pay particular attention in their practice and procedure courses on the solicitor’s role in the preparation and execution of a will.

Hon Yuen JA:

5.   I agree with the judgment of Kwan JA.

Hon Kwan JA:

6.   This is the plaintiffs’ appeal against the judgment of Chow J in a probate action ([2017] 4 HKLRD 284), given on 4 July 2017 after a trial of 13 days with no less than 12 witnesses.  The judge pronounced in solemn form a will of Au Kong Tim, deceased (“the deceased”) dated 5 September 2008 (“the 2008 Will”) propounded by the defendant Au Wing Lun William (“William”).  At issue was whether the 2008 Will was executed by the deceased; whether he was of testamentary capacity at the time of execution; and whether he knew and approved of the contents of the 2008 Will when he executed it.  All three issues were found in favour of William.  The plaintiffs sought to challenge on appeal the judge’s findings, which are findings of fact, on each of the issues.

7.   For the resolution of this appeal, it is necessary to set out the factual background and evidence in some detail.  Unless otherwise indicated, I have taken them from the judgment below.

Background

(a) The deceased’s family

8.   The deceased was born in 1916 and passed away on 7 July 2009 aged 93.  He was in the business of construction and real estate development.  He left a substantial estate valued at over $1 billion in 2015.

9.   The deceased was married to Madam Leung Shuet Hung (“Madam Leung”) in 1947.  She is of advanced age and did not give evidence at the trial.

10.   Of the issue born to the deceased and Madam Leung, two sons and a daughter have survived the deceased.  The elder son is William, the younger is Au Yuk Lun Anthony (“Anthony”).  Both are qualified solicitors in Hong Kong.  The daughter Au Lan Wai Gloria Seltzer (“Gloria”) has been living in Canada since 1969.

11.  By his two sons, the deceased had six grandchildren.  William has a son Cheuk Wei Wilson (“Wilson”) and a daughter Cheuk Lai Sarah (“Sarah”) by his wife Ms Lam Po Po Vienne.  Anthony has a son Chadwick (“Chadwick”; the 2^nd plaintiff) and three daughters, Charleen, Cheuk Mun and Cheuk Yin by his wife Madam Choy Po Chun (“Po Chun”; the 1^st plaintiff).

(b) Where the deceased resided

12.  Since around 1983, Anthony and Po Chun have been living in a unit in Provident Centre, North Point, while the deceased and Madam Leung have been living in another unit in Provident Centre.

13.  In February 2008, the deceased broke his thigh bone after a fall at home and was admitted to hospital.  On his discharge, and in March 2008, he was admitted to an elderly home.  He stayed in the elderly home until he was admitted to hospital on 27 May 2009.  He died in hospital of pneumonia on 7 July 2009.

(c) Gifts of real properties to the sons

14.  In 1976, the deceased gifted an apartment and car parking space in Evelyn Towers, North Point to Anthony.

15.  In 1983, the deceased gifted two units in Provident Centre to Anthony.  The gifts were made because of the birth of Chadwick, the deceased’s first grandson.  Also in 1983, at the direction of the deceased, Anthony transferred the property in Evelyn Towers to William pursuant to a deed of gift.

16.  In 1985, the deceased gifted a duplex flat at Caine Road (“the Caine Road Property”) to William.  The gift was made because of the birth of Wilson, the deceased’s second grandson.

17.  The judge accepted there is some truth in William’s assertion that the deceased, being a very traditional Chinese man, was disposed to favour his male descendants over female descendants.  Reference was made to an email of Gloria to Po Chun dated 20 December 2010 in which Gloria stated “knowing father always favoured male children and grandchildren, I think he would leave everything to his male heirs.”  But this does not mean he always overlooked his female descendants.  It is not in dispute the deceased provided financial support for the overseas education of all six grandchildren, including four granddaughters.  Also he made a will in 2002 leaving the whole of his estate to his six grandchildren in equal shares.

(d) Previous wills of the deceased and Madam Leung

18.  The deceased executed a will dated 31 October 1977 (“the 1977 Will”)[1] appointing Madam Leung as the sole executrix and giving the whole of his estate to her.  On 7 November 1977, Madam Leung also made a will appointing the deceased as the sole executor and giving the whole of her estate to him.

19.  By a further will dated 19 July 2002 (“the 2002 Will”), the deceased, then aged 85, revoked all former wills and dispositions made by him including the 1977 Will, appointed Po Chun, Chadwick and Charleen as the executors and trustees of the 2002 Will, and gave the whole of his residuary estate (real and personal) to his six grandchildren in equal shares (1/6^th each).

20.  Madam Leung also made a will dated 19 July 2002, the terms of which were materially the same as the 2002 Will.

21.  According to the evidence of William, the deceased made the 2002 Will which effectively “disinherited” both William and Anthony as the deceased was not happy with both his sons at the time.  William claimed that the 2002 Will was only a “gesture” to make him realise he might not be receiving anything from the deceased’s estate and was an attempt by the deceased to induce him to change his behaviour and he had changed to comply with the deceased’s wishes and the deceased had “since 2002” forgiven him.  William further claimed the deceased had been telling him for many years since 2002 that the 2002 Will was not in line with his true wishes and would change it.  In July 2008, the deceased told William he wanted to make a new will and instructed him to find a solicitor to prepare a new will for his signing.

22.  The above evidence of William was not accepted by the plaintiffs.  The judge did not make any finding on this, only noting it is not disputed that William had arranged for the preparation of the 2008 Will[2].

(e) The 2008 Will

23.  Unlike the previous wills, the 2008 Will was written in Chinese.  It was prepared by Yeung Wai Chung Victor (“Mr Yeung”) and Lau Wah Shun Edwin (“Mr Lau”) of Messrs Tso Au Yim & Yeung (“the Firm”).  They also attested to its execution by the deceased. Mr Yeung was admitted as a solicitor in 2002 and was at the material time a partner of the Firm.  Mr Lau was then a trainee solicitor under Mr Yeung’s supervision.  He was admitted as a solicitor in 2010 and at the time of trial is an assistant solicitor of the Firm.

24.  The deceased was described in the 2008 Will as having an address at the Caine Road Property and presently living in the elderly home, in accordance with the instructions sent to Mr Yeung by William by fax on 29 August 2008.  The Caine Road Property was William’s residence.  William paid the fees charged by the Firm.  No other family member was told by the deceased or William of the existence of the 2008 Will prior to the deceased’s death[3].  And as Madam Leung was unaware of the 2008 Will, she did not make any new will to mirror this will, unlike the previous wills the deceased and she had made in 1977 and 2002.

25.  By the 2008 Will dated 5 September 2008, the deceased purportedly revoked all former wills and testamentary dispositions made by him, appointed his two sons William and Anthony as the executors and trustees of the 2008 Will, and gave the whole of his residuary estate (real and personal) to William, Anthony, Chadwick and Wilson in equal shares (1/4^th each).  In the event any beneficiary shall die in the lifetime of the deceased leaving issue at the death of the deceased, such issue of the beneficiary shall take by substitution in equal shares.  If any beneficiary shall die in the lifetime of the deceased leaving no issue at the death of the deceased, the share of such beneficiary shall be given to the other surviving beneficiaries in equal shares.

26.  The relationship of Chadwick and Wilson to the deceased was not described in the 2008 Will, nor was the Hong Kong Identity Card number of any of the beneficiaries stated.  Mr Lau and Mr Yeung had received oral instructions from William it was not necessary to state in the will the Hong Kong Identity Card numbers of the beneficiaries or their relationship with the deceased[4].  The relationship of the four beneficiaries to the deceased was given in the instructions sent by William to Mr Yeung by fax on 29 August 2008.

(f) The probate action

27.  Po Chun and Chadwick brought the present action against William in March 2010 to propound the 2002 Will.  William admits the validity of the 2002 Will, subject to it having been revoked by the 2008 Will.  By his counterclaim, William sought to propound the 2008 Will.

28.  Po Chun and Chadwick disputed the validity of the 2008 Will on the grounds that (1) it was not executed by the deceased; (2) if it was, (a) the deceased was not of testamentary capacity at the time of its execution; and/or (b) the deceased did not know and approve of the contents of the 2008 Will at the time of its execution.

29.  As it is William who sought to propound the 2008 Will, the legal or persuasive burden is on him to prove, on the balance of probabilities, there was due execution of the 2008 Will by the deceased, the deceased was of testamentary capacity, and he knew and approved of the contents of the 2008 Will.  Notwithstanding Po Chun and Chadwick had raised issues such as forgery (the deceased’s signature on the 2008 Will consisted of a single Chinese character “區”), want of due execution, want of testamentary capacity and want of knowledge and approval of the contents of the 2008 Will, this only means that they would bear the evidential burden of adducing evidence sufficiently cogent to raise those issues with a view to defeating William’s case.

30.  Apart from those three main issues, “numerous” issues had been raised by the parties which are not directly relevant but may be said to go to the credibility of the witnesses.  The judge did not resolve the collateral issues unless they are essential for a proper resolution of the three main issues[5].

Medical history and records of the deceased

31.  The judge set out the contemporaneous medical records of the deceased in some detail in §§52 to 66 of his judgment:

“52. On 8 January 2007, the Deceased was admitted to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) with head and right forearm/hand injuries as a result of a fall.  On 10 January 2007, he was discharged from PYNEH.  In a medical report dated 10 March 2010 signed by Dr Tsang Yi Po (Chief of Service, Department of Neurosurgery of PYNEH), it was stated that: (i) on his admission to the hospital, CT scan of the Deceased’s brain showed “cerebral atrophy”; but (ii) in a follow‑up consultation after his discharge from PYNEH, he had good recovery and was “asymptomatic”.

53. In a Memo dated 2 September 2007, Dr Ko Wing Hong certified that the Deceased was “suffering from dementia which would affect his ability in judgement”.

54. On or about 15 February 2008, the Deceased had a fall at home and was admitted to St Paul’s Hospital with a broken thigh bone.  After his discharge from the hospital on 4 March 2008, he was admitted to the Elderly Home. While he was in the Elderly Home, he was examined by Dr Au Ting Wah.  In a “Medical Examination Form for Residents in Residential Care Homes for the Elderly” signed by Dr Au dated 4 March 2008:-

(1)   under “Past psychiatric history”, “senile dementia” was stated;

(2)   under “Physical Examination”, “dementia: general weakness” was stated; and

(3)   under “Functional Assessment”, it was stated that the Deceased was suffering from “mild dementia”, “always need personal escort”, had “frequent urine or faecal soiling”, “need time to express” (for speech), and required “frequent assistance (need supervision or assistance in bathing and not more than 4 in other activities)”.

55. On 27 April 2008, while the Deceased was in the Elderly Home, he was found to have right sided weakness and a decrease in general conditions (for 2 days), and was admitted to Queen Mary Hospital for treatment.  Chronic subdural haematoma was diagnosed, and an emergency burr hole drainage of the subdural collection was performed on 28 April 2008.  In a medical report signed by Dr Taw Beng Teck, Medical Officer of Queen Mary Hospital, dated 26 January 2010, it was stated that the Deceased had a past medical history of “dementia”.

56. On 3 May 2008, the Deceased was transferred from Queen Mary Hospital to Tung Wah Hospital for rehabilitation. He was discharged from Tung Wah Hospital on 9 May 2008.  In a “Nursing Assessment Form” dated 3 May 2008, it was recorded that the Deceased’s mental condition was “alert”, his emotions were “steady”, his speech was “clear”, but he had “double incontinence”.

57. In a document called “Occupational Therapy Department Progress Sheet” of Tung Wah Hospital, it was recorded that the Deceased’s mental state was “alert & conscious”, he could follow “simple command” and had improved “verbal response” on 5 May 2008.

58. In a medical report signed by Dr Ho Kok Yan, Medical Officer of Tung Wah Hospital, dated 19 February 2010 (with reference to his admission to and discharge from Tung Wah Hospital in May 2008), it was stated that the Deceased had “dementia”.

59. In a document called “Neurosurgery S4 Consultation Summary” of Queen Mary Hospital dated 16 June 2008 (relating to a follow up consultation), it was stated that the Deceased was “fit for oral feeding”, had “no gross neurological deficit”, and “oral feeding [was] well”.

60. In a document entitled “Community Nursing Service Closing Summary” issued by Tung Wah Hospital dated 8 August 2008, it was stated that the Deceased’s mental state was “stable”.  The following patient conditions at discharge were also recorded:-

(1)   speech: “clear”;

(2)   hearing: “normal”;

(3)   remarks: “few words”;

(4)   elimination – urinary: “incontinence”;

(5)   elimination – bowel: “incontinence”;

(6)   self care: “dependant”; ADL assistance: “bed bath, dressing, feeding, grooming, Hy mobility, shower bath, toileting”; and

(7)   patient’s responses to community nurse’s advice: “compliance - poor; capability – incapable”.

61. In a Medical Assessment Form for the Social Security Allowance (SSA) Scheme signed by Dr Tsang Chun Pong dated 14 May 2008, it was stated that the Deceased was qualified for Normal Disability Allowance, his disability was due to “chronic subdural haematoma”, and he was “mentally unfit for making a statement”.  Dr Tsang gave evidence at the trial, but could not add much to the document that he had signed.

62. In another Medical Assessment Form for the SSA Scheme signed by Dr Tomy Li Wai Tung dated 17 April 2009, it was similarly stated the Deceased was qualified for Normal Disability Allowance, his disability was due to “chronic subdural haematoma”, and he was “mentally unfit for making a statement”.  Dr Tomy Li, who gave evidence at the trial, could not recall the detailed circumstances in which he came to make the finding that the Deceased was mentally unfit to make a statement, but could only give evidence of his normal practice. When he was asked whether, in relation to the finding that the Deceased was mentally unfit to make a statement, it meant the Deceased could not answer questions put to him or do what he was asked to do, the doctor said that he thought that was what happened at that time.

63. In a document called “Lord Kindness Elderly Care and Rehabilitation Centre – assessment record to be filled in before using physical constraints” dated 16 August 2008, no abnormal psychiatric behaviour/condition (such as “confusion”, “wandering”, “other unusual behaviour”) was noted, although it was stated that the Deceased “was suffering from dementia”.

64. In a document called “Lord Kindness Elderly Care and Rehabilitation Centre - Consent for the Use of Physical Constraint” signed by Dr Li Kai Fu dated 18 August 2008, it was stated that the Deceased should be constrained by “safety vest” to prevent him from (a) falling due to “lower body weakness” and (b) removing medical appliances, drainage catheter, feeding tube, diaper or clothing because he was suffering from “dementia”.

65. In a “Medical Examination Form for Residents in Residential Care Homes for the Elderly” signed by Dr Li Kai Fu dated 18 February 2009, it was stated that the Deceased had a psychiatric history of “dementia”.  In his medical report dated 28 December 2012, Dr Li stated that “[i]n January 2009, the [Deceased’s] physical and mental condition gradually deteriorated, his dementia condition and cognitive ability became worse.  On 18 February 2009, the [Deceased] was assessed to have moderate dementia.”

66. Dr Li Kar Fu, a general practitioner, also gave evidence at the trial.  He prescribed Aricept to the Deceased, which he said would usually be given to patients with mild to moderate dementia.  He also said that between March and August 2008, the Deceased displayed symptoms showing decrease in memory and cognitive capacity.”

Evidence from witnesses of fact on the deceased’s condition

32.  Po Chun and William both gave evidence on the deceased’s condition.  The judge accepted the evidence of both, even though their evidence would seem to go in opposite directions.

33.  Po Chun’s evidence was summarised in §48 of the judgment:

“According to Po Chun:-

(1) Between 2006 and 2007, the Deceased lost his way about 5 times. In particular, on one occasion occurring on 20 August 2007, the Deceased, dressed in his pyjamas, left his residence in Provident Centre and disappeared. Po Chun tried to look for the Deceased in the streets of North Point but could not find him. A report of a missing person was then made to the Police. Later, he was found by the Police to be wandering over the streets in the vicinity of the Caine Road Property, and brought back to the Central Police Station. When Po Chun arrived at the police station, the Deceased apparently did not know why he was there, he thought that Madam Leung had been arrested for an offence and was awaiting trial (which was not true), and he kept asking Po Chun when the trial would commence. …

(2) Since 2006, the Deceased’s memory had deteriorated, as shown by his repeated purchases of the same clothes of the same design (up to over 40 pieces) and the same or similar statue of Guan Yin and animal god, and repeatedly taking home a lamp shade from a construction area.

(3) The Deceased often was not sober, talked without sense and had illusion.

(4) The Deceased often fell and injured his arms and legs.

(5) After the Deceased’s admission to the Elderly Home in about March 2008, the Deceased appeared to show symptoms of incontinence and inability to walk, and needing help in eating, cleaning, bathing, going to toilet, and changing.

(6) In the first few weeks after his discharge from Tung Wah Hospital in May 2008, the Deceased did not have a clear speech and had difficulty in communicating with family members, needed help in eating because his right hand was unable to move, and could not sit up straight on his own. After the first few weeks, the Deceased’s conditions further deteriorated: he started to have problems with swallowing and needed to be fed by intubation, he spoke less or even could not speak, when other people spoke he just looked at them and nodded but did not have other responses, he paid little attention to what other people were talking about, he could not express his needs verbally and could only express himself by nodding, his right side became weaker, he lost his ability to support himself and needed to put on a “tying-up” vest for support.

(7)  By August and September 2008, the Deceased did not speak at all, could not distinguish time and place, could only recognise her, Anthony, Madam Leung, and the domestic helper, could not move his right hand and could only slightly move his left hand. …”

34.  The judge had qualified the last part of Po Chun’s evidence stating that this part of her evidence cannot be taken literally to mean that the deceased could recognise no one else.  He accepted William’s evidence that the deceased probably could also recognise William and the nursing staff and carers at the elderly home, and communicate with them.

35.  William’s evidence was set out in §50 of the judgment:

“William’s evidence is that after the Deceased’s admission to the Elderly Home, he had been visiting the Deceased 3 times a week bringing him foods, soups and daily necessities, talking to him, comforting him, and helping him shave and go to the toilet. He continued to visit the Deceased regularly from the end of May …2009 until his death on 7 July 2009, during which period of time the Deceased was staying in a hospital. William said that the Deceased was able to communicate with (a) him, (b) the nursing staff, (c) the carers, and (d) other inmates at the Elderly Home, and he gave details of the conversations that he had with the Deceased during the period from March 2007 to May 2009 in paragraphs 56(1) and (2) of his first witness statement. …”

36.  According to §§56(1) and (2) of William’s first witness statement,

(1) the deceased had said these things to the nursing staff, the carers and the other inmates of the elderly home:

“(i) Both of my two sons are lawyers.

(ii) My six grandchildren are all educated overseas.

(iii) My wife doesn’t come here to visit me. I want to marry a second wife.

(iv) The food here is not fit for human consumption.

(v)   I want to go back home to live.”

(2) the deceased was able to and did effectively communicate with William in that he had:

(a) taught William face to face and orally, how to buy and sell shares at the right time, but not trading shares on a regular basis;

(b) complained to William his mother did not visit him and said he wanted to marry a second wife;

(c) complained to William he wanted to leave the elderly home and go back to live at his own home;

(d) complained to William how horrible the food at the elderly home was and said the food was not fit for human consumption;

(e) instructed William to buy and cook for him some food, including bread, yogurt, cake, soup and fruits;

(f) requested William to help him go to the toilet to defecate during his visits;

(g) requested William to shave him; and

(h) asked William where all his [the deceased’s] monies had gone.

Evidence of the preparation and execution of the 2008 Will

37.  Mr Yeung and Mr Lau gave evidence on the execution of the 2008 Will by the deceased.  Mr Yeung’s evidence, which was consistent with and largely supported by Mr Lau, was summarised in the judgment at §32 and accepted by the judge[6]:

“(1) He first came to meet William on 18 July 2008 in connection with the preparation and execution of a document for him (which, it is not disputed, was a will for William himself).

(2) On or about 28 August 2008, he received a telephone call from William indicating that his father wished to instruct him to draft a will and to witness the execution of the will. William also mentioned that his father had injured himself in an accidental fall and was therefore living in an elderly home. For that reason, his father could not give him direct instructions and it would be necessary for him and the representative of the Firm to go to the elderly home to witness his father’s signature on the will. Some instructions in respect of the proposed will were sought by him and provided by William over the phone. In the course of that telephone conversation, he asked William about the health condition of his father. William indicated that his father previously had a fall, was unable to walk and needed to stay at the elderly home, but his mental condition was good and sound.

(3) Afterwards, he instructed Mr Lau to assist him in following up with the case. In fact, it was only after he had spoken to Mr Lau that he was reminded that he had previously dealt with William in July and had met him once before.

(4) On 29 August 2008, William faxed to the Firm some instructions relating to the will to be prepared, including a photocopy of an old ID card of the Deceased. After receiving the faxed instructions, he instructed Mr Lau to prepare a draft will for his review and approval, which Mr Lau did. After he had approved the draft will prepared by Mr Lau, he instructed Mr Lau to send it to William for confirmation as to whether the contents thereof truly reflected the Deceased’s wishes and instructions, which Mr Lau did at a meeting with William in the office of the Firm on 2 September 2008.

(5) At that meeting, an appointment was made for him and Mr Lau to visit the Elderly Home on 5 September 2008 to interview the Deceased, explain the contents of the draft will to him and witness the execution of the same by the Deceased.

(6) In the morning of 5 September 2008, he and Mr Lau went to the Elderly Home to meet the Deceased. William was also present on that occasion. The meeting took place inside a room of about 50 sq ft in size. After William’s introduction, the Deceased greeted him and Mr Lau. He then explained to the Deceased that he had received instructions through his son to handle his testamentary matters, and requested the Deceased to produce his ID card for verification of his identity. William then handed over the original of the Deceased’s ID card to him. He checked the same and passed it over to Mr Lau for double checking. After verification of the Deceased’s identity, he informed the Deceased of the purpose of their visit and said that he wished to confirm the instructions directly with him (the Deceased), explain the contents of the will and attest to his execution of it. The Deceased politely responded that he was thankful to him and Mr Lau for coming to visit him in an elderly home. Afterwards, Mr Yeung asked the Deceased whether he wanted the will to be read over and explained to him. The Deceased indicated that he agreed with such arrangement.

(7) He then spent about 5 to 8 minutes reading out and explaining the contents of the will and its legal effects to the Deceased. After that, he asked the Deceased whether he understood and comprehended the contents of the will. The Deceased said that he did not understand. William then leaned over and raised his voice to try to explain the contents of the will, but was stopped by him. He reminded William not to interfere with his client (ie the Deceased). William kept silent upon his advice. He then asked the Deceased whether he should read out and explain the contents of the will again in a louder voice. The Deceased replied that he wished the contents of the will to be read out and explained to him again. He proceeded to do so, slowly and with a raised voice. The whole process took another 10 to 15 minutes. He then asked the Deceased whether he understood and comprehended the contents of the will and its legal effects. This time, the Deceased clearly replied to him that he understood. Mr Lau also nodded to him indicating that he too was satisfied that the Deceased understood the contents and effects of the will.

(8) He then told the Deceased that if the contents of the will were in accordance with his intention and instructions, he and Mr Lau would be required to attest to his execution of the will in order to give it legal effect. He placed the will and a pen on the foldable table of the wheelchair (on which the Deceased was sitting) and pointed out to the Deceased the place where he should sign. The Deceased tried to raise his right hand, but had difficulty in doing so, which was noticed by him and Mr Lau. He asked the Deceased whether he would require someone to assist him to sign the will, to which the Deceased replied that he needed assistance. Mr Yeung then suggested to the Deceased that William could support and assist him in signing the will. The Deceased agreed with his suggestion. William then lifted the Deceased’s right hand onto the foldable table, placed the pen into his grip and support the back of his right hand during the signing of the will by the Deceased. After the Deceased had signed the will, he and Mr Lau signed as witnesses. He told the Deceased that he would take the will for sealing and return it to William for custody. The Deceased agreed to such arrangement.

(9) The will was later sealed and given to William on 5 September 2008.

(10) The fee charged by the Firm for preparing and attesting to the execution of the will was HK$2,000.”

38.  Other than the oral testimony summarised by the judge, there were only three contemporaneous documents disclosed by the Firm relating to the preparation and execution of the 2008 Will. They were: (1) the handwritten instructions of William faxed to Mr Yeung on 29 August 2008; (2) the File Note made by Mr Lau dated 5 September 2008; and (3) an undated handwritten note made by Mr Yeung with the name and address of the elderly home in Chinese and in English the words “in good mental state”.  The handwritten note was explained in a covering letter of the Firm disclosing the same that it was made by Mr Yeung during his telephone conversation with William on 28 August 2008, the words “in good mental state” related to the deceased’s condition as told by William.  The contemporaneous documents do not add anything of significance to the testimony of Mr Yeung or Mr Lau.

If there was due execution of the 2008 Will

39.  I turn to consider the challenge to the judge’s finding of due execution.

40.  It was the plaintiffs’ case that the deceased had no part to play in the execution of the 2008 Will and that the signature of the single Chinese character “區” was entirely by William’s own hand.  In other words, the signature was a forgery.  The judge found that the 2008 Will was executed by the deceased with the support of William’s hand or under the guiding hand of William, and that such execution can properly and legally be regarded as execution by the deceased, citing Fulton v Kee [1961] NI 1 at 11 to 13 and 20, and Wilson v Beddard 59 ER 1041 at 1043.

41.  The arguments advanced by Mr Hingorani[7] for the plaintiffs went along these lines:

(1)  The plaintiffs’ handwriting expert Mr S C Leung, who concluded the disputed signature was a forgery, was of the opinion that the signature “was not written with [the] aid of a guiding hand”, as the disputed signature “does not appear to possess expected attributes of guided signatures, such as awkwardness, poor alignment, false start, kinks and jerks”, but “[on] the contrary, evidence of good pen control was depicted”[8].

(2)  Although the judge accepted that the above may support the plaintiffs’ case of forgery, he took the view the extent to which a guided signature may exhibit the expected attributes referred to by Mr Leung would depend on the circumstances.  In support of this, the judge relied on an extract from Scientific Examination of Questioned Documents (Revised Edition) by Ordway Hilton at p 204 which reads:

“There may be an occasional guided signature that reveals little conflict but actually turns out to be the handwriting of the assisting party only slightly modified. Such a condition might well arise when a close member of the family is assisting the writer and the writer himself is almost unable to write at all. Under these circumstances, if he trusts the assisting party, he may merely hold the pen and relax completely, so that the guider must move the writer’s hand and the pen in the execution of the signature.”

The judge reasoned there could occasionally be a guided signature which reveals little conflict and much would depend on whether the guided party trusts the guiding party, and allows his hand to be moved freely by the guiding hand.

(3)  Mr Hingorani focused his attack on the evidence of William, who maintained that he merely supported the back of the deceased’s hand with his hand so that the deceased’s hand would not move back and forth, that he did not apply pressure and he had only supported the deceased with a “slight force” and he felt it was the deceased himself who applied force to put down his name[9].  Counsel emphasised William was the best person to tell if he was applying any force to guide the hand of the deceased and it was not William’s case that he had guided the deceased’s hand.

(4)  Mr Yeung and Mr Lau were not able to tell if the deceased had any power in his right hand.  Mr Yeung just noticed the deceased’s whole right arm was weak and his hand did not move much[10].

(5)  There was therefore no evidential basis for the judge to find that the signature on the 2008 Will was written under the guiding hand of William, and it was wrong in the circumstances to rely on the extract in Scientific Examination of Questioned Documents to explain away the expected attributes that would otherwise be exhibited in a guided signature as mentioned by Mr Leung.

42.  In reaching the conclusion that the 2008 Will was executed by the deceased, the judge preferred[11] the direct evidence of Mr Yeung and Mr Lau to the opinion evidence of Mr Leung that there was forgery, quoting Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §15, per Chan PJ and §393, per Ribeiro PJ.  He noted it was never put to Mr Yeung and Mr Lau in cross-examination that the Chinese character purporting to be the deceased’s signature was highly probably written by William or that the signature was not written with the aid of a guiding hand, and there is nothing in the evidence to suggest why these two practising solicitors would deliberately give false evidence[12].  He reached the conclusion there was due execution notwithstanding there were discrepancies in the evidence of Mr Yeung, Mr Lau and William and further stated but for the evidence of Mr Yeung and Mr Lau, he would not have accepted William’s case on this issue, in view of William’s inconsistent evidence in his witness statements[13].  I do not think the judge could be criticised in preferring the evidence of Mr Yeung and Mr Lau and giving their evidence such weight it deserves.

43.  The judge found the 2008 Will was executed by the deceased with the support of William’s hand or under the guiding hand of William.  It is neither necessary nor appropriate for him to make a specific finding one way or other, in light of what Mr Leung had said in cross-examination:

“Q. Now, assisted, as I understand it is merely essentially steadying someone else’s hand or arm, yes?

A. Yes.

Q. Whereas the – the guided one, as I understand it, is more proactive in that one guides and more or less controls the movement of the infirmed hand - - infirmed person’s hand through the writing process.

A. Well, I wouldn’t separate assisted with guided. And actually it’s not separated in – in standard textbooks. … and …

A. … assisted and guided is - - was used - - intermingled to use.

…

A. Because it’s – it’s just a matter of degree.

…

A. And the degree is continuous, so how can you distinguish suddenly it’s assisted, now it’s guided?

…

A. … But when thinking of two person, one person holding the person - - another person’s hand and trying to help him sign, then there is no differential between …

A. … assistance and guiding.

…

A. Because it’s actually intermingled.

…

A. It’s not possible to distinguish the two. So that’s why in many textbooks it’s actually intermingled to use, assisted or guided signatures.

…

Q. … It’s clear from the first passage [p 204 of Scientific Examination of Questioned Documents by Ordway Hilton] that the line of demarcation between the two types [i.e. assisted or guided signature] is difficult to draw, yes?

A. Yes.

…

A. We can’t draw - - actually, we can’t - - because as it was put down here, because there is - - demarcation of assistance or guiding is – is unclear. It’s possible that on one occasion it was just assisted and then on the other occasion it was guided, and it might happen during the whole signature intermingle with one another. So I don’t think it’s proper to separate these …

A. … as assisted signature or guided signature.

Q. So in one situation you can have both – both happening, assisted and guided.

A. It might happen …

A. … on - - in both the …

A. … totally passive, sometimes or maybe, and on the other hand very active on the part of the person who is being assisted or guided.”[14]

44.  In view of the above, it can hardly be said there was no evidential basis to find that the signature on the 2008 Will was executed with the support of William’s hand or under the guiding hand of William.  There is no valid complaint about the judge’s reliance on the extract from Scientific Examination of Questioned Documents.  The challenge to the judge’s finding of due execution must fail.

If there was testamentary capacity

45.  The law as to testamentary capacity is as laid down by Cockburn CJ in Banks v Goodfellow (1869-70) LR 5 QB 549 at 565 and was set out by the judge in §44.  There are three limbs, so the relevant questions to ask about the deceased’s testamentary capacity to make the 2008 Will are:

(1)  If the deceased was capable of understanding the nature of the act of making the 2008 Will and its effects?

(2)  If the deceased was capable of understanding the extent of the property of which he was disposing?

(3)  Was the deceased able to comprehend and appreciate the claims to which he ought to give effect?

46.  As noted by the judge at §40, it is not in dispute that Mr Yeung and, to a lesser extent, Mr Lau, failed to follow a checklist set out in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association and the Law Society designed to ascertain whether the testator was capable of “understanding the nature of the act and its effects”, “understanding the extent of the property being disposed of” and “able to comprehend and appreciate the claims to which a person making a will ought to give effect”, i.e. the criteria for establishing testamentary capacity laid down in Banks v Goodfellow.  Nor did Mr Yeung and Mr Lau follow the “golden rule” referred to by Templeman J in Kenward v Adams (1975) The Times, 29 November 1975, namely, that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator.

47.  The judge emphasised the issue he has to determine is not whether the deceased was suffering from dementia, but whether he had testamentary capacity to make the 2008 Will[15].  He quoted the observation of Cheung JA in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148[16] at §35: “Even if, on the face of the evidence, it is shown that the deceased had dementia, the crux of the matter must be about the severity of his dementia and the extent to which the dementia affected his testamentary capacity at the time when he executed the 2008 will.”

48.  The judge reviewed the evidence of Po Chun and William on the deceased’s condition and the medical history and records, which I have set out earlier.  He then considered the evidence of the two expert psychiatrists, Dr Tsang Fan Kwong (called by the plaintiffs) and Dr Kieran Singer (called by William), neither of whom had the opportunity to examine the deceased while he was alive.  Dr Tsang is of the opinion that the deceased’s dementia was “moderate to severe”, whereas Dr Singer’s conclusion is that a diagnosis of dementia in the deceased is “not supported by medical symptoms or signs”.

49.  The judge said he would give “greater weight” to the medical notes and records regarding the signs and symptoms that the deceased was suffering from dementia as compared to the observations of Po Chun, as he considered the contemporaneous notes and records to be more objective and reliable.  He noted however there are entries in the medical notes and records which suggested the deceased did not display the signs and symptoms of a person suffering from dementia, as set out in Dr Singer’s report. All in all, the judge would only give “limited weight” to the medical notes and records in his consideration of the deceased’s testamentary capacity, noting that the relevant notes and records in respect of the diagnosis of dementia are “extremely brief”, and “did not contain full details of the Deceased’s mental condition, or state how the various medical practitioners came to make a finding that the Deceased was suffering from dementia.”[17]

50.  On the totality of the evidence, the judge preferred the opinion of Dr Singer to that of Dr Tsang, and found on the balance of probabilities that the deceased was not suffering from dementia at the time of execution of the 2008 Will[18].  If, contrary to his conclusion, the deceased was suffering from dementia, on the evidence the severity of the dementia would probably be between “mild” and “moderate”.  And notwithstanding the deceased was suffering from dementia that was mild to moderate, the judge was satisfied that William has discharged the burden that the deceased was of testamentary capacity at the time of the execution of the 2008 Will in view of these matters and the evidence of Dr Singer[19]:

(1)  The judge gave weight to the evidence of Mr Yeung and Mr Lau on the circumstances in which the deceased came to execute the 2008 Will, notwithstanding they had failed to follow the checklist in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” or the “golden rule”.  He considered it significant the deceased indicated to Mr Yeung he did not understand the contents of the will after it had been read over and explained the first time, but indicated to Mr Yeung he understood the contents after the second reading over and explanation by Mr Yeung.  This showed the deceased could differentiate between “understanding” and “not understanding” the contents of the 2008 Will and could express himself accordingly.  It showed the deceased “understood and appreciated what he was doing on that occasion.”  This is evidence which “most strongly supports” that the deceased was of testamentary capacity.  The judge attached importance to the fact that this was a will “prepared by an independent and experienced solicitor, [was] executed by the testator after the solicitor [had] read through and explained its provisions to the testator, and the solicitor [was] satisfied that the testator [was] capable of understanding, and [understood] the will”, citing Hawes v Burgess [2013] EWCA Civ 74 at §§57 and 60 in support[20].

(2)  The 2008 Will, consisting of only two pages, is simple or straight forward, and its provisions are rational.  Notwithstanding obvious important differences between the 2008 Will and the 2002 Will, the provisions in the 2008 Will are consistent with the deceased’s disposition to favour his male descendants over female descendants.  The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity (Banks v Goodfellow at 558, 565 to 566; Hoff v Atherton [2004] EWCA Civ 1554 at §44)[21].

(3)  Limited support for the view that the deceased was of testamentary capacity can be found in these matters: (a) the deceased opened a joint bank account with Madam Leung and Anthony on 23 March 2007 and Anthony had deposed that it was the deceased and Madam Leung who had exercised full control over the joint account and he was acting in accordance with the instructions of his parents; (b) in December 2008/January 2009 or September 2007, the deceased closed a dormant bank account; and (c) on 27 March 2009, the deceased executed a transfer form in respect of some rights shares in HSBC.

51.  Mr Hingorani sought to challenge the finding there was testamentary capacity by focusing his attack on the evidence of Dr Singer.  He quoted extensively from his cross-examination of Dr Singer and made these main criticisms:

(1)  Dr Singer had accepted the deceased had no less than 18 signs and symptoms of neurodegenerative disease consistent with dementia and agreed that in order to diagnose underlying disease one looks for a “cluster of symptoms”.  Instead of taking the cluster of symptoms into account as a whole, Dr Singer sought to exclude individual signs and symptoms inappropriately by resorting to speculation.  This exclusionary approach lay at the centre of his report.  That Dr Singer eventually accepted in cross-examination he would take such signs and symptoms into account should have led the judge to conclude that his report could not be relied upon.

(2)  Even though Dr Singer did not agree that the deceased had dementia, he generally accepted that the signs and symptoms displayed by the deceased in a combination were not indicative of a normal person.

(3)  Dr Singer accepted that Aricept is usually prescribed for people having dementia.  He also agreed that a Mini-Mental State Examination (MMSE) test is a reliable screening test for dementia.  The judge erred in placing no weight on the testimony of Dr Li Kai Fu who had conducted an MMSE test on the deceased when Dr Li continued to prescribe Aricept to the deceased.  Dr Singer was wrong to reject the conclusion of Dr Li that the deceased was suffering from dementia on the basis that the MMSE is just a screening test even when the score indicated mild dementia.

(4)  Dr Singer testified that after the burr hole surgery was performed on the deceased to remove the subdural haematoma in April 2008, the deceased should not have had any difficulty in moving his right arm and if there was paralysis of the right arm, it would have been attributable to damaged brain cells.  Therefore, even on Dr Singer’s own opinion, the deceased was to a certain extent suffering from brain damage that rendered him unable to move his right arm.  And this symptom of paralysis could not be accounted for by old age and depressed mood.  Dr Singer had accepted that when old age and depressed mood do not play a part, more weight should be put on the diagnosis of dementia.

52.  The approach of Mr Hingorani is inappropriate to mount a proper challenge to a finding of fact made by the trial judge.  The task of the appeal court is not to evaluate the evidence afresh, as this cannot be done by reading selectively parts of the transcript.  The appellate process is not designed to give the appellant a platform to repeat submissions on the evidence that had been made in the court below, in the hope that the appeal court may be persuaded to come to a different view.  For the appeal court to interfere with a finding of fact, it must be shown that there is error in the trial judge’s evaluation of the evidence that is sufficiently material to undermine his conclusion.  In the assessment of expert evidence, there are clearly areas in which judges can reasonably come to different conclusions.  And what weight is to be attached to a particular piece of evidence is a matter for the trial judge.  I am not persuaded the judge is plainly wrong in preferring the expert evidence of Dr Singer, or that there is any valid basis to interfere with his assessment of the evidence on the deceased’s condition given by witnesses of fact and in the contemporaneous medical notes and records.

53.  As to the above criticisms made by Mr Hingorani, I do not think they are justified for the following reasons:

(1)  The judge had clearly considered the “cluster of symptoms” argument.  He had noted although there is evidence the deceased showed some signs and symptoms of a person suffering from dementia (from the evidence of Po Chun and the contemporaneous medical notes and records), there are also entries in the medical notes and records which suggested otherwise (as fully set out in Dr Singer’s report).  He is entitled to accept Dr Singer’s evidence that the signs and symptoms could be explicable by other causes or more likely causes, such as physical weakness, old age and frailty, history of fractures and surgical operations in the present case[22]. Based on the DSM IV TR Diagnostic Guidelines for Dementia (pages 6/23 and 9/23), the judge is entitled to reject the conclusion of Dr Tsang, who did not adhere to the proper practice of differential diagnosis and the need to exclude more likely causes before arriving at a diagnosis of dementia of the Alzheimer’s Type[23].

(2)  On a fair reading of the testimony of Dr Singer, he did not accept the deceased displayed all the signs and symptoms alleged.  And although he agreed that the entire combination as a cluster was not indicative of a normal person, he did qualify his answer that one must first rule out more likely causes of all those changes[24].

(3)  The judge had considered the notes and records of Dr Li Kai Fu and did not think his oral testimony had added much to the notes and records[25].  As for the MMSE test, Dr Li said no detailed examination was carried out on the deceased[26].

(4)  The argument that the inability of the deceased to move his right arm could only be accounted for by dementia is based on Po Chun’s evidence the deceased was unable to move his right hand.  There was no specific mention of this inability in the medical notes and records.  Further, Mr Chua Guan-Hock, SC[27] has drawn to our attention the relevant contemporaneous documents which showed that the deceased’s limbs were not immobilized, there was weakness but not paralysis.

54.  As the evidence here (the medical history and records, the evidence from the factual witnesses on the deceased’s condition) does raise doubts as to the deceased’s testamentary capacity in September 2008, it is therefore incumbent on William as the propounder of the will to prove capacity.  I have mentioned at the outset the three relevant questions that should be asked about the deceased’s testamentary capacity to make the 2008 Will, in compliance with the criteria laid down in Banks v Goodfellow.  I have also mentioned the relevant parts of the judgment in which the judge gave reasons for finding that he was satisfied William has discharged the burden that the deceased was of testamentary capacity at the time of the execution of the 2008 Will.  In finding there was testamentary capacity, the judge has not specifically addressed each of the three limbs in Banks v Goodfellow.  I would have no difficulty in coming to the view that for the reasons given by the judge (the evidence of Mr Yeung and Mr Lau on the circumstances of execution of the will, the simplicity of the will and the rationality of its provisions), the deceased was capable of understanding the nature of the act of making the 2008 Will and its effects, and that the first of the three criteria is satisfied.

55.  The difficulty here is that the judge did not appear to have considered the other two criteria: whether the deceased was capable of understanding the extent of the property of which he was disposing, and whether he was able to comprehend and appreciate the claims to which he ought to give effect.  This is something that needs to be considered, even though it was not raised in the Notice of Appeal or in the plaintiffs’ skeleton argument.

56.  It does not appear to me that an inference could properly be drawn from the evidence of Mr Yeung and Mr Lau that the deceased was able to understand and did understand the matters relating to the other two criteria, for it was accepted that Mr Yeung and Mr Lau had failed to follow the checklist in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” or the “golden rule”.  This is not to say there is a rule of law that solicitors must follow the checklist or the golden rule.  As the judge had observed, they are matters of common sense which ought to have been observed[28].  In their interaction with the deceased, Mr Yeung and Mr Lau had plainly not directed their minds to ascertain if the deceased was capable of understanding the extent of the property he was disposing of, or if the deceased was able to comprehend and appreciate the claims to which he ought to give effect in his will.  No questions were asked by Mr Yeung or Mr Lau if the deceased had any other living close relative apart from the four named beneficiaries in the will, the size of the deceased’s estate or the nature of his assets, whether there was an earlier will and if so the reason for making a new will.

57.  At the hearing of the appeal, we raised with the parties if the judge had properly addressed the other two criteria in Banks v Goodfellow and, if not, whether inferences on these criteria could properly be drawn from the evidence adduced.  Here, the instructions to the solicitors for preparing the 2008 Will were not given by the deceased personally.  Essentially there is only the evidence of Mr Yeung and Mr Lau, as the judge had declined to make findings on William’s evidence as to why and how the new will came to be prepared[29].  We were taken to relevant parts of the testimony of Mr Yeung and Mr Lau[30], the supplemental witness statement of Mr Yeung and the three documents disclosed by the Firm regarding the preparation of the 2008 Will.  Mr Yeung and Mr Lau did not make any inquiries with the deceased.  Mr Yeung’s act of reading and explaining the 2008 Will to the deceased twice was merely designed to ascertain if the deceased understood the contents and effect of the will and thereby to confirm the instructions they had received indirectly through William.  What the deceased had said during March 2007 to May 2009 as related in §§56(1) and (2) of William’s first witness statement (which I have set out earlier) could not provide a proper basis for the requisite inferences to be drawn.  There is no or no sufficient basis for inferences to be drawn that the other two criteria have been satisfied.

58.  The judge had quoted §60 of Hawes v Burgess in which Mummery LJ said:

“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

59.  But as noted in Theobald on Wills (18^th ed) at §3-012, the value of the view of a busy solicitor, lacking in medical training, should not be overstated.  Whilst the wisdom of the comments in Hawes v Burgess is accepted, as Christopher Pymont QC stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at §43, those comments “do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive.  Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless.”

60.  In the present case, Mr Yeung and Mr Lau had no prior contact with the deceased before meeting him at the elderly home.  According to the information given by William and recorded in Mr Yeung’s note, the deceased was “in good mental state”.  And as the lawyers were not medically trained, in their meeting with the deceased they were not able to discern anything which might give rise to concern or call for precautions to be taken before they could properly be satisfied of the deceased’s testamentary capacity.  Given the paucity of information they sought and obtained in their interaction with the deceased, any view they formed as to the deceased’s capacity could only have been based on their assessment of the deceased’s understanding of the nature of the act of making the 2008 Will and its effects. Their assessment of the deceased’s capacity could not have extended to his capability of understanding the extent of the property of which he was disposing, and whether he was able to comprehend and appreciate the claims to which he ought to give effect.

61.  Mr Chua sought to rely on some of the medical notes and records (a consultation summary in June 2008 stated that the deceased had “no gross neurological deficit”; a discharge summary in May 2008 mentioned “decreased subdural haematoma”) and the evidence of Dr Tsang Chun Pong that the deceased could “hear and understand and obey commands”.  But I do not think such evidence would assist in establishing that the two other criteria for testamentary capacity are satisfied.

62.  After the conclusion of the hearing, and without seeking leave of the court or the consent of the plaintiffs, William’s solicitors made further submissions by letter with proposals of directions from this court to the judge.  This is highly unsatisfactory and such practice has been rightly deprecated in a number of decisions, including To Pui Kui v Ng Kwok Piu & Ors, CACV 281/2012, 21 August 2014, at §§55 to 61.  Mr Chua did not seek an adjournment of the hearing to deal with any further point he might wish to address, nor did he give any indication at the hearing he needed to do further research to supplement his submissions.  There are no exceptional circumstances here to justify a round of further submissions after the hearing was concluded. Entirely out of considerations of fairness to the other party, we allowed the plaintiffs to respond to the proposed directions.

63.  William’s solicitors submitted this court should direct the matter be remitted to the trial judge, without this court expressing any view on the merits, and just inviting the trial judge to “provide additional reasons, or reasons for a specific finding, by elaboration, clarification, or otherwise.”  The purpose of the proposed direction is to “confirm whether the Judge considered the 2 criteria were satisfied”.  The matter would then be brought back to the appeal court for determination.  If additional reasons are provided by the judge, they would be considered by the appeal court in determining the appeal.  If the judge should be unwilling or unable to provide further reasons, the appeal would then be determined on the basis of the existing material.

64.  William’s solicitors contended the judge might have an explanation for not dealing in detail with the two criteria.  This might be because the lengthy closing submissions of Mr Hingorani did not deal with those two criteria, or the judge might have thought that satisfaction of those criteria was not seriously disputed, or was not critical to the plaintiffs’ case.  They submitted that the judge had “implicitly” found the two criteria were satisfied in referring to the matters relied on by William in §51 that the deceased was “of sound mind, memory and understanding”, and in finding that William has discharged the burden the deceased was “of testamentary capacity at the time of the execution of the 2008 Will” in §84.  They contended that William, who had succeeded in proving his case before the judge, would suffer an injustice if the judgment is set aside simply because the judge “has not included in his judgment adequate reasons”.

65.  This is not a case in which the trial judge had not given adequate reasons, quite apart from the consideration that it is wholly extraordinary for the appeal court to remit the case to the trial judge prior to the disposal of an appeal with an invitation to the judge to supplement his reasons.  Nor do I accept that the judge had implicitly found that the other two criteria are satisfied.  Although the two criteria were referred to in the plaintiffs’ closing submissions (§§188 to 189), the judge had simply omitted to find whether the two criteria for establishing testamentary capacity were satisfied, despite making express reference to the necessary criteria (at §44), and stating that the legal burden is on William as the propounder of the will to prove on the balance of probabilities the deceased was of testamentary capacity (at §§28 and 84).  It is not appropriate to seek explanation from the judge for this omission.  Because of this omission, his finding that William has discharged the burden the deceased had testamentary capacity cannot stand.  There is no basis to remit the matter to the judge to invite him to give further reasons if he sees fit, as it is apparent he had made no finding on the other two criteria.  Nor would it be appropriate to remit the case for a re‑trial, as the parties must be taken to have adduced all the evidence they might wish to rely on in support of their respective cases.  On the existing evidence, even if the judge had specifically considered the issue whether the other two criteria are satisfied, there is no or no sufficient evidential basis for him to find or infer that those criteria are satisfied, for the reasons I have mentioned earlier.

66.  The above would constitute sufficient reason to allow the plaintiffs’ appeal and set aside the judgment pronouncing in solemn form the 2008 Will.

If there was knowledge and approval

67.  As testamentary capacity is not established, William’s case in propounding the 2008 Will must fail.  It is unnecessary to consider if he has proved affirmatively the deceased’s knowledge and approval of the will owing to suspicious circumstances which would bring into operation the second rule in Barry v Butlin (1838) 2 Moo PC 480.  As Sir Andrew Morritt C has stated in Perrins v Holland [2011] Ch 270 at §31: “Plainly testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter.”

68.  The judge found in William’s favour that he has discharged the burden of proving affirmatively the deceased knew and approved of the contents of the 2008 Will at the time of execution essentially for the same reasons he found for William on the issue of testamentary capacity (namely, the evidence of Mr Yeung and Mr Lau on the circumstances of execution of the will, the simplicity of the will and the rationality of its dispositions)[31]. Mr Hingorani sought to attack the finding of knowledge and approval on the basis that the judge had placed undue weight on the evidence of Mr Yeung and Mr Lau and erred in placing little weight on the highly suspicious circumstances.  Mr Chua submitted the weight to be attached to the evidence is a matter for the trial judge and there is no basis for the appeal court to interfere with the judge’s finding which cannot be said to be plainly wrong.

69.  As it is unnecessary for the disposition of this appeal, I do not propose to express any view on the judge’s finding on this issue.

70.  It is also unnecessary to deal with the plaintiffs’ arguments in their appeal against the costs order (the judge ordered the plaintiffs to pay William the costs of this action including the counterclaim), as those arguments were advanced on the basis that the opposition to the 2008 Will is unsuccessful.

Conclusion and costs

71.  For the above reasons, I would allow the plaintiffs’ appeal and set aside the judgment that the 2008 Will be pronounced in solemn form.  I would substitute this with an order that William’s counterclaim be dismissed and that the 2002 Will be pronounced in solemn form for its force and validity.

72.  We have not heard submissions on costs of the appeal and below, so the orders I propose to make on costs are orders nisi.

73.  The plaintiffs are the successful parties in the appeal and they should be awarded costs on the usual principle that costs should follow the event, with a certificate for two counsel.  I would deprive them of part of the costs as they have failed on several substantial points taken on appeal (the issue relating to due execution, the finding on the expert medical evidence).  I think it appropriate they should be deprived of 50% of the costs of the appeal.

74.  I would set aside the costs order made by the judge that the plaintiffs should pay William’s costs of this action including the counterclaim.  As the plaintiffs have succeeded in opposing the 2008 Will, they should be awarded the costs of the action including the counterclaim, with a certificate for two counsel.  I would deprive the plaintiffs of part of their costs below.  They alleged that the signature was a forgery, and the judge has found against them on this issue.  On a broad brush basis, I would order that they be awarded two‑thirds of the costs of the action including the counterclaim.

Postscript

75.  I cannot leave this judgment without impressing upon solicitors the importance of the task they undertake in the preparation and execution of wills and their heavy responsibility.  I associate myself with all that Cheung JA has said in his judgment on the proper enquiries that should be conducted by a solicitor in this situation.  As noted by the judge in §91, the courts generally attach much significance to the fact that a will was prepared by a solicitor and its contents had been read over by the solicitor to the testator prior to his execution of the same.  There is a policy argument which reinforces the proposition that judges should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge, as stated by Lord Neuberger MR in Gill v Woodall [2010] Ch 380 at §§16 and 17:

“Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.

Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the usual potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time.”

76.  The freedom of testamentary disposition allowed by the law may be jeopardised if the view formed by a solicitor as to the testamentary capacity of the testator client is shown not to be based on a proper assessment so that the value of the solicitor’s assessment is diminished.  The checklist and the golden rule mentioned earlier contain prudent guidance for solicitors, the observance of which would help to ensure that basic requirements for the validity of a will would not be overlooked.