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

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

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JUDGMENT

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INTRODUCTION

1.  This action concerns the validity of a will allegedly made by Au Kong Tim (區幹恬), deceased (“the Deceased”) dated 5 September 2008 (“the 2008 Will”).  Three key issues arise for determination:-

(1) whether the 2008 Will was executed by the Deceased;

(2) whether the Deceased was of testamentary capacity at the time of execution of the 2008 Will; and

(3) whether the Deceased knew and approved of the contents of the 2008 Will at the time of execution of the same.

BASIC FACTS

(i)   Family Background

2.  The Deceased was born in 1916, and died on 7 July 2009.  During his lifetime, the Deceased ran a successful business in construction and real estate development. He left a substantial estate upon his death.  As at 31 December 2015, the total value of the Deceased’s estate was over HK$1 billion.

3.  The Deceased was married to Madam Leung Shuet Hung (“Madam Leung”) in 1947.  They had two sons and one daughter, namely:-

(1) Mr Au Wing Lun, William (“William”) – the defendant;

(2) Ms Au Lan Wai, Gloria Seltzer (“Gloria”); and

(3) Mr Au Yuk Lun, Anthony (“Anthony”).

4.  William has one son (“Wilson”) and one daughter (“Sarah”) by his wife, Ms Lam Po Po Viennie (“Viennie”).

5.  Gloria has been residing in Canada since around 1969.

6.  Anthony has one son (“Chadwick” – the 2^nd plaintiff) and three daughters (“Charleen”, “Cheuk Mun” and “Cheuk Yin”) by his wife, Ms Choy Po Chun (“Po Chun” – the 1^st plaintiff).

7.  Both William and Anthony are qualified solicitors in Hong Kong.

8.  Since around 1983, Anthony and Po Chun have been living in an unit in Provident Centre, North Point, while the Deceased (until he was admitted to the Elderly Home mentioned below) and Madam Leung have been living in another unit in Provident Centre.

9.  According to Po Chun, the Deceased was admitted to Lord Kindness Elderly Rehabilitation & Care Centre (“the Elderly Home”) in March 2008.  On the other hand, in William’s first witness statement dated 20 November 2013, he said that his father was admitted to the Elderly Home in March 2007 and he visited his father regularly (three times a week) from March 2007 to May 2009.  In his first supplemental witness statement dated 12 December 2016, William accepted that he could have mixed up the year of his father’s admission to the Elderly Home, but in his second supplemental witness statement dated 20 January 2017 he reverted to the version that the date of his father’s admission to the Elderly Home was in March 2007.

10.  To be fair to William, Po Chun has not always been consistent about the date of the Deceased’s admission to the Elderly Home either.  In her first witness statement dated 8 August 2013, she said that the Deceased was admitted to St Paul’s Hospital following a fall at home breaking his thigh bone in February 2008, and was admitted to the Elderly Home after his discharge from St Paul’s Hospital.  However, in her first supplemental witness statement dated 20 April 2016, she said that the Deceased slipped and fell down badly breaking his thigh bone in February 2007, and was admitted to the Elderly Home after his discharge from hospital.  Apparently, Po Chun also told Dr Tsang Fan Kwong (the plaintiff’s psychiatric expert witness) during interviews in March and July 2017 that the Deceased was admitted to the Elderly Home after a fall in February 2007.  In her third supplemental witness statement dated 10 February 2017, she said that she incorrectly remembered the date of the Deceased’s fall when she made her first supplemental witness statement (in that the date of the Deceased’s falls should be February 2008 instead of February 2007), and the date of the Deceased’s admission to the Elderly Home should be 4 March 2008.  She also produced some receipts issued by the Elderly Home to prove the date of the Deceased’s admission to the Elderly Home.

11.  As will be seen below, the Deceased had a fall in January 2007 and another fall in February 2008, and was hospitalised on each occasion.  That probably explains why Po Chun and William might have been confused about the date of the Deceased’s admission to the Elderly Home.  On the totality of the evidence before me, I find that the Deceased was admitted to the Elderly Home in March 2008.

12.  The Deceased stayed in the Elderly Home until he was admitted to St Paul’s Hospital on 27 May 2009.  He died of pneumonia at the hospital on 7 July 2009, at the age of 93.

(ii)   Gifts of real properties made by the Deceased to William and Anthony

13.  In 1976, the Deceased gifted an apartment and a car parking space in Evelyn Towers, North Point, Hong Kong (“the Evelyn Tower Property) to Anthony.

14.  In 1983, the Deceased gifted two units in Provident Centre to Anthony.  According to William, the gifts were made because of the birth of Chadwick, the Deceased’s first grandson.

15.  In the same year, ie 1983, upon the direction of the Deceased, Anthony transferred the Evelyn Towers Property to William pursuant to a deed of gift.

16.  On 7 February 1985, the Deceased gifted a duplex flat at No 147 Caine Road, Hong Kong (“the Caine Road Property”), to William.  According to William, that gift was made because of the birth of Wilson, the Deceased’s second grandson.

17.  William says that the Deceased, being a very traditional Chinese man, had always favoured his male descendants over his female descendants, as shown by the fact that although the Deceased made gifts of real properties to his two sons as mentioned above, the Deceased never gifted any real property to his daughter (Gloria).  In addition, Williams refers to an email sent by Gloria to Po Chun dated 20 December 2010, in which Gloria stated the following:-

“Knowing father always favoured male children and grandchildren, I think he would leave everything to his male heirs.”

18.  I accept that there is some truth in William’s claim that the Deceased’s disposition was to favour his male descendants over female descendants.  It does not mean, however, that the Deceased always overlooked his female descendants.  It is not in dispute, for example, that the Deceased provided financial support for the overseas education of all his six grandchildren, including his four granddaughters. Also, as will be seen below, the Deceased made a will in 2002 leaving the whole of his estate to his six grandchildren in equal shares.

(iii)   The Deceased and Madam Leung’s previous wills

19.  According to William, the Deceased made a will in 1976 giving the whole of his estate to him (William) and Anthony.  William is unable to produce a copy of the 1976 will, but claims to have been shown a copy of it by Madam Leung.  Since nothing much turns on the 1976 will, it is not necessary for me to decide whether the Deceased ever made this will as alleged by William.

20.  It is not in dispute that the Deceased executed a will dated 31 October 1977 (“the 1997 Will”) appointing Madam Leung as the sole executrix of that will and giving the whole of his estate to Madam Leung, although William claims that he did not become aware of the existence of this will until after the commencement of these proceedings.

21.  On 7 November 1997, Madam Leung also made a will appointing the Deceased as the sole executor of that will and giving the whole of her estate to the Deceased.

22.  By a further will dated 19 July 2002 (“the 2002 Will”), the Deceased:-

(1) revoked all former wills and testamentary dispositions made by him (including the 1997 Will);

(2) appointed Po Chun, Chadwick and Charleen as the executors and trustees of the 2002 Will; and

(3) gave the whole of his residuary estate (real and personal) to his six grandchildren in equal shares (ie 1/6^th each).

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

(iv)   The 2008 Will

24.  According to William:-

(1) Although the Deceased made the 2002 Will which effectively “disinherited” both him and Anthony, the Deceased never intended to disinherit them forever.  The Deceased made the 2002 Will because he was not happy that:-

(a) William’s firm (Messrs William Au & Co) had been losing a lot of money, and William had employed a particular paralegal (“Raymond”) whom the Deceased considered to be the main cause of the failure of his practice; and

(b) Anthony ran for the office of the Chief Executive of the HKSAR in 1997, contrary to his wish that his family should maintain a low profile.  Also, the Deceased “disinherited” Anthony in order to “maintain fairness and basic equality” between William and Anthony.

(2) The 2002 Will was only a “gesture” to make him realise that 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.  It was the Deceased’s wish that (i) he would close down his firm to cut his losses, (ii) he would stay away from Raymond, and (iii) he would visit him more often to “become a more filial son”.  William claims that his father’s plan worked as he “did all 3 of these acts almost immediately afterwards upon reflection”, and his father “had since 2002 forgiven him”.

(3) The Deceased had been telling him for many years since 2002 that the 2002 Will was not in line with his true wishes and he would change it.  In July 2008, the Deceased told him that he wanted to make a new will and instructed him to find a solicitor to prepare the same for his signing.  This eventually led to the making of the 2008 Will on 5 September 2008.  William admits that, for about 1 month prior to the Deceased’s execution of the 2008 Will, he had assisted his father in practising his Chinese signature for “10 odd times” by holding his father’s hand during such practice sessions.  I shall come back to the circumstances in which the Deceased allegedly executed the 2008 Will later in this Judgment.

25.  Po Chun and Chadwick do not accept the above evidence of William.  It is not, however, in dispute that it was William who arranged for the preparation of the 2008 Will. 

26.  By the 2008 Will, the Deceased purportedly:-

(1) revoked all former wills and testamentary dispositions made by him (including the 2002 Will);

(2) appointed William and Anthony as the executors and trustees of the 2008 Will; and

(3) gave the whole of his residuary estate (real and personal) to his two sons (William and Anthony) and his two grandsons (Chadwick and Wilson) in equal shares (ie 1/4^th each).

(v)   The present action

27.  This action was commenced by Po Chun and Chadwick against William on 29 March 2010 seeking to propound the 2002 Will.  By his counterclaim, William seeks to propound the 2008 Will.  William admits the validity of the 2002 Will, subject to it having been revoked or superseded by the 2008 Will.  On the other hand, the validity of the 2008 Will is disputed by Po Chun and Chadwick on the grounds that:-

(1) the 2008 Will was not executed by the Deceased;

(2) if the 2008 Will was executed by the Deceased -

(a) he was not of testamentary capacity at the time of execution of the 2008 Will; and/or

(b) he did not know and approve of the contents of the 2008 Will at the time of execution of the same.

28.  Since it is William who wishes to propound the 2008 Will in solemn form, the legal or persuasive burden is on him to prove, on the balance of probabilities, that: (i) there was due execution of the 2008 Will by the Deceased; (ii) the Deceased was of testamentary capacity; and (iii) the Deceased knew and approved of the contents of the 2008 Will (see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 173 per Ribeiro PJ).

29.  The fact that Po Chun and Chadwick have raised issues such as forgery, want of testamentary capacity and want of the requisite knowledge and approval of the contents of the 2008 Will means that they bear the evidential burden of adducing evidence sufficiently cogent and probative to raise those issues with a view to defeating William’s case on the 2008 Will.  However, the legal or persuasive burden of proving that the 2008 Will was the will of the Deceased remains on William (see Nina Kung, at paragraphs 176, 180 and 194 per Ribeiro PJ).

30.  Before I consider the three main issues mentioned at the beginning of this Judgment, I should mention that numerous issues have been raised by the parties which are not directly relevant to the three main issues but may be said to go to the credibility of the witnesses, eg William (and Anthony)’s disciplinary records, the fact that William and, for that matter, Anthony, had previously asked for or obtained financial assistance from the Deceased, William’s personal life, William’s indebtedness to third parties, letters written or signed by Madam Leung expressing disapproval of William’s conduct, etc.  In view of the relationship between the parties to this action, I do not propose to resolve the collateral issues mentioned above unless they are essential for a proper resolution of the three main issues in this action.

THE 2008 WILL WAS EXECUTED BY THE DECEASED

31.  In relation to the issue of due execution of the 2008 Will by the Deceased, William called Mr Yeung Wai Chung, Victor (“Mr Yeung”) and Mr Lau Wah Shun, Edwin (“Mr Lau”), who prepared that will and attested to the execution thereof by the Deceased on 5 September 2008, to give oral evidence at the trial.  Mr Yeung, admitted as a solicitor in Hong Kong in 2002, was at the material time and is a partner of Messrs Tso Au Yim & Yeung (“the Firm”).  Mr Lau was, in September 2008, a trainee solicitor (under the supervision of Mr Yeung) and is now an assistant solicitor of that firm, having been admitted as a solicitor in Hong Kong in 2010.

32.  According to Mr Yeung, whose evidence was largely consistent with and supported by Mr Lau:-

(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.

33.  At the trial, there was much cross examination of William, Mr Yeung and Mr Lau by Mr Hingorani on the details of Mr Yeung and Mr Lau’s meeting with the Deceased at the Elderly Home on 5 September 2008 and the execution of the 2008 Will by the Deceased, including matters such as the room in which the meeting took place, the size of the room, what furniture was in the room, the exact sequence of events, who said what at the meeting, the relative standing or sitting positions of Mr Yeung, Mr Lau, William and the Deceased in the room, and the precise manner in which William supported the Deceased’s right hand when executing the 2008 Will.  It is not necessary for me to recite the details of William, Mr Yeung and Mr Lau’s evidence on these matters or resolve such discrepancies, mostly minor in nature, as there may exist in their evidence on these matters having regard to the nature of the allegation raised by Po Chun and Chadwick, namely, that the Deceased’s signature, consisting of a single Chinese character “區”, on the 2008 Will was “forged”.  In his cross examination of William, Mr Hingorani put to him that the Deceased had no part to play at all in the execution of the 2008 Will and the signature of the Deceased was entirely by William’s own hand, which suggestions were denied by William.

34.  In support of the case of forgery, Po Chun and Chadwick rely substantially on the evidence of their handwriting expert, Mr S C Leung, whose opinions are that:-

(1) the Chinese character “區” purporting to be the signature of the Deceased on the 2008 Will was “highly probably” written by William (paragraph 8.5 of Mr Leung’s expert report dated 9 October 2014); and

(2) that signature “was not written with [the] aid of a guiding hand” (paragraph 8.6 of Mr Leung’s expert report).

35.  Mr Leung expresses his opinions by reference to what he calls a “9-point opinion scale”.  Under this scale, the above views expressed by Mr Leung would represent his firm or clear conclusions.  If Mr Leung’s views are correct, it necessarily means that both Mr Yeung and Mr Lau lied in court (there being no question of mistaken recollection, confusion or misunderstanding as to how the Deceased came to execute the 2008 Will), although that was never put to them by Mr Hingorani in his cross examination of those witnesses. 

36.  I have carefully considered the evidence of Mr Yeung and Mr Lau.  There is nothing in the evidence before me to suggest why these two practising solicitors would deliberately give false evidence in a court of law.  I accept, by and large, their evidence regarding the circumstances in which the Deceased came to execute the 2008 Will on 5 September 2008.  I have reached this conclusion notwithstanding (i) such discrepancies as there may exist in the evidence of Mr Yeung, Mr Lau and William, and (ii) the expert evidence of Mr Leung.

37.  As regards the evidence of Mr Leung, I have the following observations:-

(1) In forming his opinion that the disputed signature was not made by the Deceased, Mr Leung had only four known Chinese signatures of the Deceased for the purpose of comparison with the disputed signature on the 2008 Will.  On any view of the matter, the sample size is a very small one for the purpose of carrying out a handwriting examination.  Further, those four signatures were made by the Deceased over a long period of time (in 1962, 2000, 2005 and 2006 respectively), when the Deceased was, it would seem, in better physical conditions.  Taking into account also the manner by which the Deceased allegedly executed the 2008 Will (namely, with the support of William’s hand or under the guiding hand of William), it is hardly surprising that the disputed signature would exhibit different handwriting characteristics when compared with his known signatures. As stated in Ordway Hilton, Scientific Examination of Questioned Documents (Revised Edition), at page 202, “[w]hen the assisting party guides the writing hand to such an extent that he is participating in the writing formation, characteristics foreign to the writer’s usual habits can be introduced”.

(2) As for Mr Leung’s opinion that the disputed signature was written by William, that opinion was essentially based on the existence of some common handwriting characteristics between the disputed signature and the known signatures of William.  However, as also stated in Scientific Examination of Questioned Documents, ante, at page 204, “[t]here 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.”

(3) In reaching his conclusion that the disputed signature “was not written with [the] aid of a guiding hand”, Mr Leung places considerable reliance on the fact that the disputed signature “does not appear to possess expected attributes of guided signatures, such as awkwardness, poor alignment, false start, kinks and jerks”, but “[o]n the contrary, evidence of good pen control was depicted” (see paragraph 7.3 of Mr Leung’s report).  I accept that this is a matter which may support Po Chun and Chadwick’s case of forgery.  However, the extent to which a guided signature may exhibit the expected attributes referred to by Mr Leung would, I believe, depend on the circumstances.  As mentioned in the quoted passage in (2) above, there could occasionally be a guided signature which reveals little conflict.  Much would depend on whether the guided party trusts the guiding party, and allows his hand to be moved freely by the guiding hand.

38.  In Nina Kung v Wong Din Shin, Chan PJ stated at paragraph 15 that “… the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert.  This is especially so in the case of handwriting evidence because of the nature of such evidence.”  In the same case, Ribeiro PJ stated at paragraph 393 that “handwriting evidence is necessarily of a lower order of cogency than direct evidence of execution”.  In the present case, I prefer the direct evidence of Mr Yeung and Mr Lau to the opinion of Mr Leung.

39.  There are three other matters that I ought to mention here. 

40.  First, Mr Hingorani criticises Mr Yeung and, to a lesser extent, Mr Lau, for failing 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 Deceased 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”. Mr Hingorani further criticises Mr Yeung and Mr Lau for failing to follow the “golden rule” referred to by Templeman J (as he then was) 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.  It is not in dispute that Mr Yeung and Mr Lau did not follow the said checklist or the golden rule.  The checklist and the golden rule are matters of common sense which ought to have bene observed.  I have taken Mr Hingorani’s criticisms into account when assessing Mr Yeung and Mr Lau’s evidence, but do not consider that their failure to follow the said checklist or the golden rule should cause me to reject their evidence.

41.  Second, if the 2008 Will was executed by the Deceased in the manner as described by Mr Yeung and Mr Lau (namely, with the support of William’s hand or under the guiding hand of William, coupled with a sufficient indication by the Deceased of his intention to execute the will and of his assent/acquiescence to the contents thereof), such execution can properly and legally be regarded as execution by the Deceased (see Fulton v Kee [1961] NI 1 at 11-13 and 20; Wilson v Beddard 59 ER 1041 at 1043).

42.  Third, in reaching the conclusion that the 2008 Will was executed by the Deceased, I rely on the evidence of Mr Yeung and Mr Lau, but not that of William.  But for their evidence, I would not have accepted William’s case on the issue of execution, in view of his previous inconsistent evidence appearing in paragraph 52 of his first witness statement (where he said, “I merely placed the pen into my father’s palm and my father started to sign on the Last Will without me holding his hand”), which evidence he retracted in paragraph 128 of his first supplemental witness statement (where he said, “Thinking back, I think I could have continued to hold my father’s hand when he signed”).  This inconsistency is a major one, and cannot be brushed aside as being a minor inconsistency or discrepancy.  There are other discrepancies between the evidence of Mr Yeung and/or Mr Lau on the one hand and William on the other, eg whether William told Mr Yeung over the phone that his father was mentally sound, and whether Mr Yeung said to William at the meeting on 5 September 2008 that it was better for the Deceased to sign than just make a mark on the will).  On these matters, I prefer the evidence of Mr Yeung and Mr Lau and reject the evidence of William.

43.  In all, I find that the 2008 Will was executed by the Deceased, and reject the allegation of forgery raised by Po Chun and Chadwick.

THE DECEASED WAS OF TESTAMENTARY CAPACITY AT THE TIME OF EXECUTION OF THE 2008 WILL

(i)   Applicable principles

44.  The following classic statement by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 was endorsed by the Court of Appeal in Chiu Man Fu v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013), at paragraph 52, as laying down four criteria for testamentary capacity:-

“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.”

45.  In Boughton v Knight (1873) LR 3 P&D 64 at 67, Sir J Hannen stated that the question of whether a testator had testamentary capacity should be treated as a “practical question” which did not depend solely on scientific or legal definition, and was a question of degree to be solved on the facts and circumstances of each case.  Further, as pointed out by the Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for commonsense judicial judgment on the basis of the whole of the evidence.

46.  The fact that a person was suffering from dementia, or had partial unsoundness of mind, does not necessarily mean that he did not have testamentary capacity to make a will: see Chiu Man Fu v Chiu Chung Kwan Ying, HCAP 9/2005 (31 January 2012), at paragraph 133 per Poon J (as he then was); Chan Chun Pui and Pang Woon Kam v Feng Cuixian, HCAP 13/2007 (24 July 2009), at paragraphs 121-124 and 146 per Recorder A Ho SC.

47.  The fact that the dispositions in a will are rational is an important factor or indicator of testamentary capacity (see Banks v Goodfellow, supra, at 558 and 565-566; Hoff v Atherton [2004] EWCA Civ 1554, at paragraph 44 per Peter Gibson LJ).  So also is the fact that   a will is prepared by an independent and experienced solicitor, is executed by the testator after the solicitor has read through and explained its provisions to the testator, and the solicitor is satisfied that the testator is capable of understanding, and understands, the will.  In Burgess v Hawes [2013] EWCA Civ 74, the following was stated by Mummery LJ:-

“57 That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

60 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.”

(ii)   Po Chun’s evidence on the Deceased’s conditions

48.  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 Poi 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.  (In relation to this matter, I have disregarded the evidence of PC 58558 who was called as a witness to give evidence at the trial, because it is clear that he had minimal (if any) recollection of the incident.)

(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 statute 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.  I should mention that this part of Po Chun’s evidence cannot be taken literally to mean that the Deceased could recognise no one else.  As will be seen below, I accept 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.

49.  In assessing Po Chun’s evidence, I have considered the various points raised by Mr Chua regarding her credibility in paragraphs 66 to 81 of his closing submissions.  I do not propose to lengthen this judgment by analysing them separately here.  Notwithstanding those points, many of which are peripheral to the central issues in this case and of marginal relevance only, I am satisfied that, by and large, Po Chun is an honest witness, and I accept her evidence referred to paragraph 48 above.

(iii)   William’s evidence on the Deceased’s conditions and other matters

50.  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.  I accept the above evidence given by William.

51.  In addition, William relied upon various other matters in support of his case that the Deceased was of sound mind, memory and understanding, including the following:-

(1) Between March 2007 and 7 July 2009, Po Chun used, or continued to use, a general power of attorney dated 18 March 2002 executed by the Deceased in her favour to enter into tenancy agreements and acted in relation to tenancy matters on his behalf. In paragraph 9 of her 6^th affidavit filed on 30 March 2011, Po Chun said that the Deceased was “sober enough for the purpose of the Powers of Attorney Ordinance”.

(2) On 23 March 2007, Anthony and Madam Leung took the Deceased to open a joint bank account, no 239-278872-001, at Hang Seng Bank (“the Joint Account”).  The account opening form was apparently signed by the Deceased, Madam Leung and Anthony, and provided that any one of the three account holders could operate the account.  Between April 2007 and June 2009, dividends payable on the shares held in the name of the Deceased in various listed companies, namely, CLP Holdings Ltd, Hongkong Electric Holdings Ltd and HSBC Holdings plc (totalling some HK$60 million), were paid into the Joint Account.  In paragraph 18 of Anthony’s 2^nd affidavit filed in HCAP 9/2010 on 17 June 2010, he stated that “it was the Deceased and [Madam Leung] who had exercised full control over [the Joint Account]”.  And in paragraph 3 of his 2^nd affidavit filed in this action on 20 March 2011, he stated that “[f]or the joint account with Hang Seng Bank Limited and the dividend payment, I was acting in accordance with the instructions of the Deceased and my mother”.

(3) In around December 2008 or January 2009, William once accompanied the Deceased (in a wheelchair) to Hang Seng Bank, Kennedy Town, requesting the bank to add him (William) as an account holder/authorized signatory of the Joint Account. However, that could not be done without the consent of the other joint account holders.  Nevertheless, the Deceased did, on that occasion, close a dormant account with the bank.  Pausing here, I should mention that in paragraph 133 of his first supplemental statement, William accepted that he might have mixed up the account numbers and/or the date of closure of the dormant account.

(4) The Deceased signed a form dated 27 March 2009 to transfer “213,721 Rights Shares” in HSBC out of his name.

(5) The Deceased was baptized by Po Chun in the morning of 7 July 2009, before he passed away later that day.

(6) In paragraph 4 of Anthony’s 2^nd affidavit filed in HCAP 9/2010, he stated that, “… I make it very clear of my stance that I do not seek to contest the validity of the 2008 Will …”.

(iv)   Medical history and records

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.

(v)   Expert evidence

67.  By paragraph 1 of the order of DHCJ B Chu (as she then was) dated 15 December 2014, the parties were given leave to adduce expert evidence on the issue of the Deceased’s mental capacity on 5 September 2008, and by paragraph 3 of her order, the parties were required to file and exchange written expert reports on that issue based on (i) the medical notes, discharge summaries and other medical records relating to the Deceased, and (ii) the facts as set out in the witness statements.  At the trial, two expert psychiatrists, namely, Dr Tsang Fan Kwong (called by Po Chun and Chadwick) and Dr Singer (called by William), gave evidence on the Deceased’s mental capacity.  Neither expert had the opportunity to examine the Deceased while he was alive.  Their assessments were, in that sense, “retrospective”.  The following expert reports are before the court:-

(1) Dr Tsang’s report dated 30 July 2015;

(2) Dr Singer’s report dated 10 February 2015; and

(3) Dr Tsang and Dr Singer’s joint report dated 28 November 2015.

68.  Dr Tsang expresses the following conclusions in his report:-

(1) “… [the Deceased’s] dementia was moderate to severe” (paragraph 72).

(2) “The Deceased was suffering from dementia since 2006 and the dementia was running a gradual downhill course.  Chronic Subdural haematoma might have brought further impairment to his brain function.  Drainage of it resulted in slight and brief improvement yet the deterioration could not be stopped” (paragraph 75).

(3) “When he made the Will on 5 September 2008, based on various information available, his mental capacity might be substantially impaired making him not fit to make a will mentally. Also, there was no formal assessment done to ensure that he is fit to make a Will.  For elderly with dementia and living in elderly home, mental capacity to make a Will should be confirmed before he execute [sic] the Will” (paragraph 76).

69.  On the other hand, Dr Singer’s conclusions are as follows:-

“1 A diagnosis of Dementia in the Deceased is not supported by medical symptoms or signs.

2 There is lack of medical evidence of mental incapacity – mental impairment ‘or’ abnormality of mental processes – in Deceased affecting ability to understand or make a choice in executing the will.

3 Medical evidence of capacity outweighs that of incapacity.

7 … the Deceased on the balance of probabilities more likely than not did have mental capacity at the moment he executed the 2008 Will on 05^th September 2008” (pages 76 - 78 of Dr Singer’s report).”

70.  In their joint report, Dr Tsang and Dr Singer agree that:-

(1) retrospective proof of mental capacity or incapacity is difficult because of lack of sufficient information; and

(2) in psychiatric practice a person is presumed mentally normal until it is proved otherwise.

71.  In view of the fact that neither expert had the opportunity to examine the Deceased in person, they have to base their assessment of the Deceased’s mental capacity by reference to the available medical records (including both what is stated and what is not stated in those records) and the evidence of the factual witnesses (throwing light on whether the Deceased showed signs and symptoms of a dementia patient).  I understand from the oral evidence of the experts that typical symptoms of a dementia patient would include memory impairment, disorientation in respect of time and place, language disturbance, delusion, inability to carry out daily activities or being dependent on others for daily activities, incontinence, and inability to swallow, although the severity of these signs and symptoms would depend on whether the patient has reached the stage of mild, moderate or severe dementia.  It would appear also not to be in dispute that the Deceased did show at least some of those signs and symptoms during the period of time that he was staying in the Elderly Home.  Dr Singer says, however, that there could be other causes for the signs and symptoms displayed by the Deceased, and one must rule out those other causes or more likely causes (such as physical weakness, old age and frailty, history of fractures and surgical operations) before one can make a definitive diagnosis of dementia.

(vi)   Deceased’s testamentary capacity

72.  The evidence which most strongly supports William’s case that the Deceased was of testamentary capacity at the time of the execution of the 2008 Will comes from the circumstances in which that will came to be executed by the Deceased, as described by Mr Yeung and Mr Lau.  I have already summarised their evidence above when considering the issue of due execution and I shall not repeat the same here.  The Deceased’s interaction with Mr Yeung and Mr Lau on 5 September 2008 shows, in my view, that the Deceased understood and appreciated what he was doing on that occasion.  I consider it to be significant that the Deceased indicated to Mr Yeung that he did not understand the contents of the 2008 Will after it had been read over and explained to him for the first time, but indicated to Mr Yeung that he understood the contents thereof after the second reading over and explanation by Mr Yeung.  This shows that the Deceased could differentiate between “understanding” and “not understanding” the contents of the 2008 Will, and express himself accordingly.  I give weight to the evidence of Mr Yeung and Mr Lau on the issue of testamentary capacity notwithstanding Mr Hingorani’s criticisms of their evidence mentioned in paragraph 40 above.

73.  I also take into account the fact that the 2008 Will, consisting of only 2 pages, is simple or straight forward, as well as the fact that the provisions in the 2008 Will (under which the Deceased appointed his two sons as the executors and trustees thereof, and gave his estate to his two sons and two grandsons) are, in my view, rational.  Mr Hingorani says that the 2008 Will represents a radical departure from the 2002 Will.  There are obviously important differences between the two documents.  However, the provisions in the 2008 Will are consistent the Deceased’s disposition to favour his male descendants over female descendants.  The best proof of this matter comes, I believe, from the mouth of the Deceased’s daughter (Gloria).

74.  Further, limited, support for the view that the Deceased was of testamentary capacity can be found in some of the matters relied upon by William referred to in paragraph 51 above, in particular:-

(1) the fact that the Deceased opened the Joint Account with Madam Leung and Anthony on 23 March 2007;

(2) the fact that in around December 2008/January 2009 (or September 2007), the Deceased closed a dormant bank account at Hang Seng Bank; and

(3) the fact that on or about 27 March 2009, the Deceased executed a transfer form in respect of some rights shares in HSBC.

75.  I do not, however, attach weight to other matters relied upon by William, in particular:-

(1) the fact that Po Chun continued to use the general power of attorney given by the Deceased to enter into tenancy agreements and acted in relation to tenancy matters on behalf of the Deceased between March 2007 and July 2009 – because I accept Po Chun’s explanation that she did so believing that her action would benefit or protect the interests of the Deceased;

(2) Po Chun’s statement that the Deceased was “sober enough for the purpose of the Powers of Attorney Ordinance” – because Po Chun was not a lawyer and I do not believe that she could differentiate between the mental capacity required for making a will and that required for the continued validity of a power of attorney;

(3) the previous statements made by Anthony in relation to the control and operation of the Joint Account – because those statements were made in answer to William’s allegation that Anthony and Po Chun had misappropriated properties and monies belonging to the Deceased, and I believe it to be likely that that Anthony was seeking to exculpate himself when he made those statements;

(4) the fact that the Deceased was baptized by Po Chun in the morning of 7 July 2009 – because Po Chun might have been keen to see the Deceased baptized before he passed away; and

(5) the fact that Anthony previously stated on oath that he did not seek to contest the validity of the 2008 Will – because Anthony stood to receive a substantial inheritance under that will.

76.  These having been said, I accept that there is also some evidence which may support the view that the Deceased lacked testamentary capacity at the time of execution of the 2008 Will.

77.  First, there are various medical notes and records (referred to in paragraphs 52 to 65 above) in which a diagnosis of dementia was stated.  In relation to those medical notes and records, Dr Signer comments that (i) the medical practitioners who certified or stated that the Deceased was suffering from dementia were not or might not be qualified to make a definitive diagnosis of dementia because they were not specialists in psychiatry, and (ii) there was no proper clinical diagnosis of dementia by reference to accepted international classifications of mental disorders (such as the diagnostic criteria from the World Health Organization International Classification of Disease (WHO ICD 10), or the American Psychiatric Association, Diagnostic and Statistical Manual (DSM IV)), or evidence of the Deceased’s conditions meeting those diagnostic criteria.

78.  In my view, although the medical practitioners who certified or stated that the Deceased was suffering from dementia might not be specialists in psychiatry, dementia is not such a rare condition for elderly persons that it would necessarily be beyond the competence of general practitioners to recognise or diagnose.  This having been said, the relevant medical notes and records in respect of the diagnosis of dementia are extremely brief. They did not contain full details of the Deceased’s mental condition, or state how the various medical practitioners came to make a finding or diagnosis that the Deceased was suffering from dementia.  Hence, I would only give limited weight to the said medical notes and records in my consideration of the Deceased’s testamentary capacity (see the observations of the Cheung JA, with whom Yuen JA agreed, in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, at paragraph 34, regarding the quality of these medical notes and records).  In passing, I should mention that the oral evidence of Dr Li Kar Fu does not, in my view, add much to the medical notes and records.

79.  Second, there is evidence that the Deceased showed some signs and symptoms of a person suffering from dementia.  Such evidence comes mainly from the observations of Po Chun as well as from the contemporaneous medical notes and records referred to in paragraphs 52 to 65 above.  For the present purpose, I would give greater weight to the contemporaneous medical notes and records, which I consider to be more objective and reliable, than the observations of Po Chun.  Although the medical notes and records show that the Deceased did display some signs and symptoms of a person suffering from dementia, there are also entries which suggest otherwise (as fully set out in Dr Singer’s report which I do not propose to repeat in this Judgment).  Further, I 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.

80.  Third, there is the opinion evidence of Dr Tsang.  His diagnosis is that the Deceased was suffering from dementia of the “Alzheimer’s Type with Behavioural Disturbance, Late Onset” (paragraph 47 of Dr Tsang’s report).  In his closing submissions, Mr Chua submitted that Dr Tsang adopted a wrong starting point: instead of taking the absence of records of signs and symptoms as pointing towards the Deceased being in normal and healthy mental state, Dr Tsang asserted that there was no evidence to show the Deceased had mental capacity.  A few passages in Dr Tsang’s report, in particular paragraphs 56, 68, 69, 70 and 74, were relied upon by Mr Chua.  Read in their proper contexts, I do not consider that Dr Tsang adopted a wrong starting point as suggested by Mr Chua.  Indeed, Dr Tsang expressly agrees with Dr Singer that in psychiatric practice a person is presumed mentally normal until proven otherwise (see paragraph 74 of Dr Tsang’s report).  This is repeated in paragraph 1 (page 12) of the joint expert report of Dr Tsang and Dr Singer.

81.  Of greater substance is Mr Chua’s criticism that Dr Tsang 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, which criticism I consider to have some force.  As stated in the DSM-IV Diagnostic Guidelines for Dementia, “[a]lthough researchers are seeking to develop sensitive and specific tests to confirm the diagnosis of Dementia of the Alzheimer’s Type, it currently remains a diagnosis of exclusion, and other causes for the cognitive deficits … must first be ruled out” (page 6/23), and “[b]ecause of the difficulty of obtaining direct pathological evidence of the presence of Alzheimer’s disease, the diagnosis can be made only when other etiologies for the dementia have been ruled out” (page 9/23). 

82.  There is another unsatisfactory aspect of Dr Tsang’s evidence. DHCJ B Chu’s order dated 15 December 2014 expressly provided that the expert reports should be prepared based on the assumptions that the medical notes, discharge summaries and other medical records of the Deceased already disclosed would be admitted as evidence at the trial and the facts stated in the witness statements already filed and exchanged were true.  The purpose of this direction clearly was to ensure that each expert would be expressing his opinions on the basis of common and identified materials thereby facilitating a fair assessment of their respective evidence.  However, it is not in dispute that Dr Tsang sought information directly from Po Chun, Anthony and Chadwick during interviews which took place on 24 March 2015 and 25 July 2015 (for a total of 3 hours) for the purpose of preparing his report.  The problem with the approach adopted by Dr Tsang is that (i) neither Anthony nor Chadwick made any witness statement or gave evidence at the trial, and (ii) it is by no means clear from Dr Tsang’s report as to which parts of the information set out in paragraphs 5 to 24 of his report came from Po Chun and which parts came from Anthony/Chadwick.  Although many of the matters referred to in paragraphs 5 to 24 of Dr Tsang’s report are covered by Po Chun’s evidence or other documents before the court, it remains unclear how much weight Dr Tsang placed on information provided by Anthony and Chadwick in forming his opinions.

83.  On the totality of the evidence before me, I find, on the balance of probabilities, that the Deceased was not suffering from dementia at the time of execution of the 2008 Will.  In any event, the issue that I have to determine is not whether the Deceased was suffering from dementia, but whether he had testamentary capacity to make the 2008 Will.  As observed by Cheung JA in Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148, at paragraph 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.”

84.  Even if, contrary to the above conclusion, the Deceased was suffering from dementia at the material time (the severity of which, on the evidence, would probably be between “mild” and “moderate”), in view of the matters stated in paragraphs 72 and 73 above and the evidence of Dr Singer (whose opinion I prefer to the opinion of Dr Tsang), I am satisfied that William has discharged the burden that the Deceased was of testamentary capacity at the time of execution of the 2008 Will.

85.  There is one other point raised by Mr Chua that I should briefly deal with.  Mr Chua submits that an adverse inference should be drawn against Po Chun and Chadwick on the ground that Anthony and Chadwick have not been called to give evidence. I accept that they may be able to give some evidence relevant to the Deceased’s mental condition at the material time.  However, Anthony is a named executor and beneficiary under the 2008 Will, but not under the 2002 Will.  If the validity of the 2008 Will is upheld, Anthony will stand to receive over HK$250 million from the estate of the Deceased, while he gets nothing under the 2002 Will.  It is clear that Anthony’s interests under the 2008 Will are quite different from those of Po Chun and Chadwick under the 2002 Will.  In such circumstances, I consider it reasonable for Po Chun and Chadwick not to call Anthony, who has a huge personal financial interest in the outcome of the action, as their witness at the trial whatever may be their understanding as to Anthony’s view or belief as regards the mental condition of the Deceased.  Indeed, it may even be argued that, given Anthony’s interests and William’s interests under the 2008 Will are identical, William could or should have called Anthony to give evidence.   In so far as Chadwick is concerned, it has not been suggested by Mr Chua that he had frequent contacts with the Deceased particularly after his admission to the Elderly Home in March 2008.  The value of his evidence would, I believe, be limited.  In any event, I consider the existing evidence is sufficient for me to form a clear conclusion on the Deceased’s testamentary capacity which would not be displaced by any adverse inference that may arise from the failure of Anthony and Chadwick to give evidence.

86.  There is also some suggestion, in Mr Chua’s closing submissions (at paragraph 43.3), that Madam Leung could also have been called to give evidence.  However, I understand that Madam Leung is of advanced age.  I do not consider it unreasonable for Po Chun and Chadwick not to call Madam Leung to give evidence, particularly having regard to the nature of these proceedings.

THE DECEASED KNEW AND APPROVED OF THE CONTENTS OF THE 2008 WILL AT THE TIME OF EXECUTION

87.  On behalf of Po Chun and Chadwick, Mr Hingorani argues that, on the facts of the present case, the second rule in Barry v Butlin is triggered so that, as explained by Ribeiro PJ in paragraphs 206 to 211 of his judgment in Nina Kung, William is required to prove affirmatively knowledge and approval in order to satisfy the court that the 2008 Will represented the wishes of the Deceased.  In support of this argument, Mr Hingorani relies, in particular, on the following so-called “suspicious circumstances”:-

(1) “radical departure from previous testamentary dispositions”;

(2) “beneficiary was the controlling force”; and

(3) “reading over insufficient” (see paragraphs 21 to 31 of Mr Hingorani’s closing submissions).

88.  I accept Mr Hingorani’s submissions that there are special circumstances or features in the present case which would bring into operation the second rule in Barry v Butlin so that knowledge and approval cannot be presumed merely upon proof of due execution and testamentary capacity, and that the court ought to be vigilant and jealous in examining the evidence when considering the issue of knowledge and approval.

89.  In this case, the 2008 Will was prepared by Mr Yeung (an experienced solicitor) and was executed by the Deceased in front of Mr Yeung and his trainee solicitor after its contents had been read over and explained to the Deceased by Mr Yeung.  As earlier mentioned, I regard as significant the fact that after the 2008 Will had been read over and explained to him for the first time, the Deceased indicated to Mr Yeung that he did not understand the contents of the 2008 Will, but after the second reading over and explanation, the Deceased indicated to Mr Yeung that he understood the contents thereof.

90.  Generally speaking, the fact that a will was prepared by a solicitor and was, on the face of it, properly executed by a testator in front of the solicitor and his clerk after having been read over the contents thereof by the solicitor provides strong evidence of the testator’s knowledge and approval of the contents of the will: see Gill v Woodall [2010] Ch 380 per Lord Neuberger MR:-

“14. Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. 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 …’

This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256 , 261, whose approach was referred to with approval by Latey J in In re Morris, decd [1971] P 62 , 77 f -78 b . Hill J said that “when it is proved that a will has been read over to or by a capable testator, and he then executes it”, the “grave and strong presumption” of knowledge and approval “can be rebutted only by the clearest evidence”. This approach was adopted in this court in Fuller v Strum [2002] 1 WLR 1097 , para 33 and in Perrins v Holland [2011] Ch 270 , para 28.”

91.  It may be noted the phrases “strong presumption” or “grave and strong presumption” were used by various judges when explaining the significance of 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.  It is not necessary for me to decide whether such circumstances should be regarded as giving rise to a rebuttable legal or evidential presumption of the testator’s knowledge and approval of the contents of the will.  For the purpose of the present case, I am content to proceed on the basis that such circumstances should be regarded as strong evidence of the testator’s knowledge and approval of the contents of the will, as a matter of common sense.

92.  Moreover, the 2008 Will is, as earlier observed, a simple document, and its dispositions are rational.  These are factors which further support the view that the Deceased knew and approved of the contents of the 2008 Will (see Hoff v Atherton, supra, at paragraph 65 per Chadwick LJ; Boudh v Bodh [2007] EWCA Civ 1019, at paragraph 46 per Mummery LJ).

93.  In all, I am satisfied that William has discharged the burden of proving affirmatively that the Deceased knew and approved of the contents of the 2008 Will at the time of his execution of the same.

DISPOSITION

94.  For the foregoing reasons, I dismiss Po Chun and Chadwick’s claim against William and, in relation to William’s counterclaim, pronounce in solemn form for the force and validity of the 2008 Will.  I also order Po Chun and Chadwick to pay William’s costs of the action (including the counterclaim), to be taxed if not agreed.

95.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court in this action.