ZHANG RUI HUA AND ANOTHER v. WANG LAN AND ANOTHER

HCAP 13/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 13 OF 2010

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J U D G M E N T

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INTRODUCTION

1. The plaintiffs commenced this action in June 2010.  In essence, this action is concerned with the estate of one Mr Po Yu (“the deceased”).

2. The 1^st plaintiff (“Mdm Zhang”) is the deceased’s natural mother while the 2^nd plaintiff (“Chuan-yao”), who was born in August 2002, claims to be the deceased’s son.

3. The 1^st defendant (“Mdm Wang”) is the deceased’s lawfully wedded wife.  Finally, the 2^nd defendant (“Juan”) claims to be the deceased’s lawfully adopted daughter.

4. The plaintiffs seek principally a court pronouncement that the Will dated 2 February 2005 (“the said will”) was a valid will.  They also seek a declaration that Chuan-yao is the deceased’s natural son, and that Juan is not the deceased’s lawfully adopted daughter.

5. The defendants deny the claim, and counterclaim that the said will is not genuine, or, if genuine, has been revoked by the deceased. Further, they seek a declaration Juan is the deceased’s daughter and entitled to share in the deceased’s estate.

BACKGROUND

6. The deceased was a businessman who passed away on 24 March 2005 at the age of 50 (born in December 1954).  Although he was born in the Mainland, the deceased became a Hong Kong resident in December 2000 (about 4 years before his death).  During the last few years before his death, the deceased used to reside in Hong Kong and Shenzhen, but would travel between these two cities and elsewhere in the Mainland (especially Yuxi City (玉溪市), Yunnan (雲南)) for business purposes.

7. The deceased has suffered from heart disease for some time.  There is evidence he was admitted into the hospital for such reason from time to time since April 2003.

8. Mdm Wang was married to the deceased in February 1980 (about 25 years before the deceased’s death) in Yuxi.  It is undisputed their respective families were close, and their fathers were long-time colleagues and friends.

9. Mdm Wang lives in Shenzhen.  But according to her witness statement, she has been living in Zhuhai City from about 1996 to 2005 (whether the deceased lived with her for the whole period is a matter in dispute).

10. The deceased seemed to have lived in more than one place.  Two ladies were called by the plaintiffs to testify: Ms Ma, who also lives in Shenzhen, claims that the deceased has been living with her together with Chuan-yao from 1999 to 2005 (though she accepts the deceased would stay in Kunming City (昆明巿), and in Hong Kong, from time to time); Ms Yang, who has been living (and still lives) in a flat in the “South Horizons” project, Apleichau Island, claims that the deceased stayed with her in the flat when he was in Hong Kong.

11. Chuan-yao was born in Shenzhen on 20 August 2002 (and was thus about 2 years old at the time of the deceased’s death, and about 11 years old at the time of trial).  According to an adoption certificate from the Mainland (produced by the defence), Juan was born on 4 November 1981 (about 11 years old at the time of adoption (24 February 1993), and about 31 years old at the time of trial).

MAIN ISSUES

12. The main issues are, to a large extent, factual in nature:

(a)   whether Chuan-yao is the deceased’s son;

(b)  whether the said will was the will of the deceased;

(c)   what happened to the original of the said will (“the original will”) and, related to that, whether its loss implies its revocation;

(d)  whether Juan is the deceased’s adopted daughter.

13. The other issues, especially the relief sought (the pronouncement sought by the plaintiffs, and the declarations sought by the defence), are legal consequences which flow from the factual findings to be made below.

WITNESSES’ CREDIBILITY/RELIABILITY AND FINDINGS OF FACT

(a)  Witnesses’ Testimony

14. Quite a few witnesses have been called to testify for the plaintiffs:

(1)  Mr Pu Jun, the deceased’s younger brother who lives in Kunming (“Pu Jun”);

(2)  Ms Ma, the natural mother of Chuan-yao (“Ms Ma”) and an intimate friend of the deceased;

(3)  Mr Yang, a business partner of the deceased, and who claims to be present when the said will was prepared and signed by the deceased (“Yang”).  His witnessing signature appears on the said will;

(4)  Mr Han, a close friend and workmate of the deceased, who also claims to be present when the said will was prepared and signed by the deceased (“Han”).  His witnessing signature also appears on the said will;

(5)  Mr Qiu, a friend of the deceased who lives in Shenzhen (“Qiu”);

(6)  Ms Yang, a lady who claims to have lived together with the deceased in Hong Kong (“Ms Yang”).

Two witnesses testified for the defence: Mdm Wang and Mr Liu, Juan’s natural father (and Mdm Wang’s brother-in-law).

15. The tests for assessing witnesses’ credibility have been variously set out in cases such as:

(i)   Wong Siu Ming Jason v Chung Man Wai Rebecca HCA 64/2010 (30 August 2012), para 10;

(ii)  Lee Fu Wing and Another v Yan Paul Po Ting and Another [2009] 5 HKLRD 513, para 53.

These tests have been adopted here.

16. Details regarding the factual matters over which the testimony of the respective parties’ witnesses differ will be set out below.  Insofar as it may be necessary to find an overall assessment of their credibility (or credibility over matters not specifically so set out below), I prefer the testimony of the plaintiffs’ witnesses over that of the defence witnesses (where their testimony conflicts).

(b)  Findings of Fact

Is Chuan-yao the Deceased’s Son ?

17. Two of the plaintiffs’ witnesses testified about this: Ms Ma (para 2 and 4, witness statement) and Han (para 15, witness statement). 

18. In addition, the plaintiffs adduced expert evidence about Chuan-yao’s blood relationship with the deceased: joint DNA report filed on 10 June 2013.  The report concluded:

“[The deceased’s two brothers] cannot be excluded as the [uncles] of [Chuan-yao]”;

“Based on the genetic information generated by the PCR‑based STR analysis (Perkin Elmer Applied Biosystems AmpFISTR Identifiler® Plus), the Combined Avuncular Index in this case is [746.1820 (>1.0)] [4.9295 (>1.0)], indicating high possibility of avuncular relationship between the tested persons”.

19. The defence has not adduced any countering evidence.  Indeed, the defence sensibly accepted in its closing submissions that Chuan‑yao is the deceased’s son: para 79 thereof; Mdm Wang also did so in her testimony.

20. In these circumstances, it is proper to infer that Chuan‑yao is the deceased’s natural son.

The Said Will

21. Several of the plaintiffs’ witnesses testified to the execution of the said will by the deceased: Pu Jun, Yang and Han.  They said they were present and personally saw the deceased read and signed the said will.

22. The defence submits that the above witnesses are untruthful because many parts of their testimony are:

(a) inherently implausible;

(b) contradicted by indisputable evidence.

Criticisms based on the above are then levied against each of the above witnesses in turn; I shall deal with them below.

23. It is alleged that Yang’s testimony should not be believed because his witness statement does not mention the hand-written draft of the said will was thrown away after the said will was typed up.  I do not accept the allegation to be valid.  This matter was not raised by Yang himself, but was only mentioned in answer to defence counsel’s cross‑examination. I do not see how, by raising a matter not stated in the witness statement, and thereby obtaining an answer to that matter, the questioner can then validly criticize a witness for giving the answer. (The same comments can be made of Pu Jun’s testimony to the same effect)

24. Han’s testimony is said to be untruthful because his witness statement says that:

“he noticed the contents of [the said will] mentioned, inter alia, that the Deceased had ‘heart disease’ … ” (para 9 thereof) (para 20, defendants’ closing submissions).

This is said to be inconsistent with the contents of the said will.  Again, I do not find the criticism to be valid.

25. The actual text of the witness statement reads:

“[遺囑]內容大致上是寫著死者的健康並不好，他有心臟病，若他一旦逝世，他會把他的遺產分配給母親張瑞華及他的兒子普傳耀”.

The relevant part of the said will states:

“兩次住院後，感覺到身體大不如前，我若有什麼意外發生 … ”.

26. First, the closing submissions have not stated the relevant part of Han’s witness statement entirely accurately.  Secondly, the difference between:

(1)  “內容大致上是寫著死者的健康並不好，他有心臟病” (witness statement) and “感覺身體大不如前” (the said will);

(2)  “若他一旦逝世” (witness statement) and “若有什麼意外發生” (the said will),

can properly be viewed as semantic in nature.  Thirdly, it is apparent Han’s witness statement was drafted by the plaintiffs’ legal team.  In any event, it expressly refers to the said will.  It is thus highly unlikely Han would deliberately lie about the contents of the said will in his witness statement.

27. There are various parts of Pu Jun’s testimony which are not entirely satisfactory (see below).  However, the part of his testimony concerning the preparation and execution of the said will is supported by the testimony of Yang and Han (see above).

28. For the above reasons, I accept the testimony of Pu Jun, Yang and Han to be truthful and reliable in relation to this aspect.  Accordingly, I find that the said will was prepared and executed by the deceased.

The Deceased’s Testamentary Capacity

29. The only substantial piece of evidence asserting that the deceased lacked testamentary capacity because of the poor state of his health is the relevant parts of Mdm Wang’s testimony.  For the reasons given below, I reject her testimony as being untruthful and unreliable.

30. First, the general tenure of the witnesses’ testimony (including Mdm Wang’s) suggests that the deceased’s heart disease only became potentially life-threatening in an acute and sporadic manner.  During the other times, the deceased attended work as a businessman and travelled regularly (if not frequently) for business purpose within China (and between Hong Kong and China).

31. Secondly, all the witnesses who were close to the deceased (except Mdm Wang), such as Pu Jun, Ms Ma, Ms Yang, Yang and Han never mentioned any lack of mental capacity on the deceased’s part.  This is especially so at the time of preparation and execution of the said will.  There is no evidential basis (apart from Mdm Wang’s assertions that he was incapable of taking care of himself or his affairs (in fact, there is basis for inferring that he was capable of doing so).

32. Thirdly, the remarks made by the Mainland medical personnel in the deceased’s medical records (especially his last hospital admission record) show that the deceased’s dialogue with the medical personnel was regarded by the latter as comprehensible and reliable.

33. By reason of the above, not only is it properly to reject Mdm Wang’s assertions, it is appropriate to infer that the deceased has full testamentary capacity when he prepared and executed the said will.

Loss of the Original Will

34. It is common ground the original will has been lost.  The plaintiffs contend that it was kept in a safe in the deceased’s room where the deceased resided in when he was in Yuxi.  The defence, on the other hand, denies that there was a safe in the room.

35. Further, the defence contends that the loss of the original will triggers the presumption that the deceased has revoked it before his death.  Again, I disagree.

36. Han testified to:

(a)   the purchase and installation of the safe in the deceased’s room in Yuxi (para 16, Han’s witness statement);

(b)  the deceased telling him the original will would be kept in the safe (para 15, Han’s witness statement).

37. There is no proper basis for doubting this part of his testimony.  The defence appears to accept Han was a close friend and workmate of the deceased.  Han is not a beneficiary of the deceased’s estate, and there is nothing to suggest he will gain personally by testifying to the matters set out in para 36 above.  On the defence case, Mdm Wang was the deceased’s beloved wife, and, being the deceased’s close friend, there is no apparent reason for Han to harm Mdm Wang or her interests.  Mdm Wang agreed in her testimony there was no personal grudge (or dislike) between her and Han.

38. In view of the above, I am prepared to accept the matters set out in para 36 above.

39. The reason why the original will cannot now be found is unknown.  Various possibilities have been posed by the parties for its disappearance.  But no reliable conclusion can be reached on the evidence.

40. The crucial issue is, however, whether the original will’s disappearance entitles one to infer the deceased has revoked the said will.  Here it is important to bear in mind the following matters:

(1)  the two named beneficiaries are respectively the deceased’s mother and son;

(2)  the deceased made known to Ms Ma in March 2005 he had arranged everything and told her not to be afraid;

(3)  the deceased told his friends of the arrangement set out in the said will (para 9, Han’s witness statement; para 6 to 8, Yang’s witness statement);

(4)  the deceased told some of the people close to him he would not give money to Mdm Wang (para 9, Qiu’s witness statement; para 12 and 13, Ms Ma’s witness statement; para 4, Ms Yang’s witness statement).

There is no proper basis to show that the deceased has changed his mind regarding the above matters.

41. Accordingly, I am satisfied that the plaintiffs have rebutted the presumption that the said will has been revoked by the deceased by reason of the loss of the original will.

The Adoption of Juan

42. In view of the above findings, it is strictly unnecessary to make any finding regarding this aspect, Juan not being a beneficiary of the deceased’s estate.

43. In brief, I disagree with the plaintiffs that the deceased has expressly “disowned” Juan.  Despite the execution inadequacies in the adoption certificate, I accept that the deceased must have been aware of the adoption in (or shortly after) February 1993 (some 12 years before his death in March 2005).  It may be that the relationship between him and Juan has never been close (the absence of Juan during the trial of this action is also telling).  It may also be that the adoption was not what he wanted.  But the evidence falls short of showing his denial of it.

CONCLUSION

44. Judgment is entered in favour of the plaintiffs.

45. The deceased’s estate should be administered in accordance with the said will.  Neither Mdm Wang nor Juan are beneficiaries thereto.  The declaration sought has no practical meaning.  Declaration being a discretionary relief, I will exercise my discretion in declining to made the order sought.  The counterclaim is accordingly dismissed.

OTHER MATTERS

46. The parties’ closing submissions also mentioned various other matters.  These have not been expressly set out or dealt with in the above headings and sub-headings.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other matters are thought to be irrelevant (or have been overlooked). To avoid doubt, those other matters have also been considered.

47. Such matters include:

(a)   whether the deceased regularly lived together with Mdm Wang until his death;

(b)  details pertaining to the preparation and execution of the said will;

(c)   the said will was “home-made” but yet was typed up and appears to conform with the provisions of Hong Kong’s Wills Ordinance (Cap 30);

(d)  the said will made no provision for Mdm Wang or Juan, respectively the deceased’s wife and adopted daughter;

(e)   Mdm Zhang, Mr Li and Juan did not testify at trial;

(f)   the plaintiffs amended their pleading by deleting the averment to the effect the safe was still inside the deceased’s room in Yuxi as late as 28 March 2005;

(g)   Mdm Wang accompanied the deceased on some of the occasions when the deceased went to the hospital for medical treatment;

(h)  Mdm Wang has kept some of the medical records.

Costs Order

48. The parties agree that the usual rule that costs should follow the event should apply.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the defendants to the plaintiffs to be taxed if not agreed.  The 1^st defendant’s own costs be taxed in accordance with the Legal Aid Regulation (Cap 91A).