HUI TUEN YUNG v. FUNG MAN FAI AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Case No: P7 of 1987.

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JUDGMENT

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The Background.

1. Mr Fung Woon Sun ("the deceased"), the father of the Defendants, died on 19 February 1982. The deceased was a widower and the Defendants were his only children.

2. No will of the deceased has been produced for probate. The Plaintiff says there was a will; that she was present when the deceased executed it on 26 May 1979. Under that will, the Plaintiff says, she is entitled to a one-seventh share of the estate. The defendants do not admit there was any such will, and allege that, if there was one, it was destroyed by the deceased animo revocandi.

The Plaintiff's Evidence.

3. The Plaintiff is a widow of sixty-eight years of age. She first met the deceased on a trip to Taiwan in 1976 when he was "seventy-something" and she was "fifty-something". He contacted her on their return to Hong Kong and they developed a close relationship. They saw each other frequently; nearly every day, and went on outings and overseas trips together.

4. The deceased frequently asked her to marry him, saying that, after the marriage, she would be his lawful wife and he would give her all his estate. Her reaction to this was to say that they were both old and she had sons and daughters, and to refuse the proposals. The deceased said that if she refused to marry her, he would give all his property to the government. He said be had made a will, but if she would marry him, he would cancel it and make a new one.

5. The deceased complained that his sons and daughters were "unfilial", particularly Man Kwong and Man Yee, and if she married him there would not be so many troubles. He said that Man Kwong had turned him out of Man Kwong's home, and he asked her to help him find another place. He also complained of what he regarded as some ill-treatment of the son Man Tat, who was slightly mentally retarded.

6. In 1979, the deceased asked the Plaintiff to come with him to the premises of the Hong Kong Teachers' Association of which he was a member. He told her to bring her identity card, saying that she would write down her name and she would be his god daughter. He would give her a share of his estate, the eldest son - Man Fai - would get two shares because he was the most important heir, Man Tat would get two shares because he was mentally retarded and Man Wai and Man Hin would get one share each. She asked why two of the children were getting nothing and he replied it was because they were rebellious. He had told her of this proposed distribution of his estate several times, from time to time.

7. In May 1979, they went together to sign the will There were many people there on that occasion. Initially, he told her to sit down and wait and later he would ask her to come to sign. Other people there, who, she understood were also there to sign wills, went to a long table to sign.

8. The Plaintiff was asked what she saw the deceased do and she replied that he wrote down the names of the children first and wrote down her name last. This was written on a will form and he asked her to sign her name beside the names of the children.

9. The Plaintiff said that the deceased stood up and went to the signing table, although she did not hear him called. Then be signalled her to join him. She did so. At the table was a solicitor, Francis Chaine, and some others who were witnesses to the wills. She put her name next to be children's names; next to the words "god daughter" which she saw written down.

10. She does not remember the deceased signing the paper, or the witnesses doing so.

11. After the signing, the deceased took the will and said that he would put it in his safe deposit box immediately. As they left, the deceased said he had "written down there, as you refused to marry me, my only alternative is to give you one share". They went for tea, and again he said "your name is here; you have one share" At this time, the Plaintiff said, the deceased was short of $20,000 "plus" for a share purchase and she raised $10,000 "plus" for him.

12. They then went to the Ka Wah bank to deposit the will. The deceased had given her a key to this box, saying that she should open the box from time to time so "the lady" would recognize her.

13. After the will was signed, the deceased said again that she had one share. He also said, "If any of them beg you on their knees for the key to the box, you should not give it to them". He also said that the eldest son and the eldest grand-son would have two shares altogether, Man Tat also would have two shares, and Man Wai, Man Kwong and she would have one share each. The others were to get no shares. She was asked if she had said Man Kwong and she said she had meant Man Hin.

14. After the signing of the will, she remained on good terms with the deceased.

15. On the day before he died, she saw the deceased and arranged to meet him the next day outside the bank, but he did not come. She wailed two hours for him. She telephoned the deceased's home and was told that he had been removed to hospital. She rang Man Wai who told her to ring Man Fai which she did.

16. She went to the deceased's residence, where she met Mr Mak (who is the husband of Man Wai), Man Kwong, Man Fai and Man Yee, although she hesitant about the personalities involved. They said they wanted to search drawers for a key. She told them that she had a key and they asked her for it so they could go to the safe deposit box immediately. She agreed so they gave her a plastic bag to go to the bank and "look for things". She was accompanied to the bank by Mr Mak and others she is obviously not sure about; she seems to think they were Man Kwong and Man Fai. She went to the box and the others waited outside. She took from the box a bundle of papers, bound with rubber bands, and two pencils. She did not open and examine the bundle. She put these in the plastic bag and immediately gave it to those waiting.

17. That evening, between seven and eight o'clock, she had a call at home She does not know who called, but it was a male. He said, "Are you god-sister?" The sons of the deceased would call her god-sister. She asked the caller if he had examined the will and he said be had and that in the will she had a share. She said it is not just the will; there are some shares. He said he had examined the will in respect of shareholdings and he would discuss it with his brothers and sisters. She said, "Since you know it, it is all right". The Plaintiff said that in the will it is stated the god-daughter will get a share. The man then said "god-daughter in bed". This was an insult, implying that she was the deceased's sleeping partner, and she was very angry and offended.

18. After this, she did not mention the will again. She said her heart was easy because the man had said that he had examined the will and she had a share. After four years, she rang Man Fai to ask about the will. He said the sons denied that she bad given them the will. She then went to the Legal Aid Department.

19. The Plaintiff mentioned a trip the deceased took to Singapore and Malaysia in 1980. She said she was not free and her friend, Mde Chow Mei-wa, said she would like to go. The deceased said he would invite her but she would have to help him. The Plaintiff denied that there was any relationship between the two, by which, I took it, she meant an intimate relationship In cross-examination, perhaps seeking to anticipate what was to come, the Plaintiff told me that, when he returned, the deceased told her that he and Mde Chow were chatting while he fell asleep. In this connection, the Plaintiff was asked in cross-examination if she had met many of the deceased's girlfriends especially one called Poon. She said she had not. When asked again about Poon, the one from the shoe factory, she said she had introduced her to the deceased.

20. Because the Defendants were unrepresented, I asked the Plaintiff some questions before cross-examination. I set out the questions and answers I recorded at that time:

Q. When you went with the deceased to the Teachers' Association, did you see the document be signed?

A. He walked out first; I was sitting

Q. Did you see the document he signed?

A. No.

Q. You have said you signed some document. What was that?

A. The will. He said I am going with you to sign the will.

Q. You did not see him sign any document?

A. After the signing, he said, it's all right now, you do not have to worry.

Q. Did you see him sign any document?

A. No.

Q. The document you signed, what did you see on that?

A. I did not see - I did not read it. He just said since you refuse to marry me, I will give you a share.

Q. You saw nothing on it at all?

A. He said expressly I would be signing a will.

Q. See anything on it at all?

A. What I saw was only the names of the children and the will.

Q. What mean by "the will"?

A. On that day, he said you must bring along your i/d card.

Q. You saw the names with your own eyes?

A. Yes.

Q. What see in particular?

A. I did not have my spectacles so I could not see clearly.

Q. What did you see?

A. He told me he would bring the i/d cards of the children.

Q. What was written on the document?

A. Man Fai - two shares - he told me that.

Q. See yourself?

A. No.

Q. What see yourself on the document you signed?

A. Cannot remember.

Q. Remember seeing anything in that document?

A. Writings, but I do not know what the contents were.

21. She said that she saw the deceased put the will into the safe-deposit box. It was rolled up, she said, not folded. My record continues:

Q. Before death, when mentioned will to you last?

A. I do not remember.

Q. Ever mention that be had destroyed, changed or revoked the will?

A. I had asked him -he said don't worry; no matter how many wills I make, the last will is the only effective one.

Q. He told you he had made other wills?

A. He said I wide a will: Whoever is more filial to me, I will give him more shares.

Q. Ever mention making a will after leaving Teachers' Association?

A. No.

Q. Ever mention changing or revoking will made then?

A. He even told me not to give to his children.

Q. Answer the question.

A. Not to give shares to the children.

Q. (Question repeated).

A. He did not. He had all the time told me I had a share and advised me not to give to his children even if they kneel down before me.

22. In cross-examination, the Plaintiff was asked why she did not check the items in the plastic bag and she gave an answer proving the worth of the question: "You have so many brothers, your father told me if there were disputes you would do me down."

23. The next witness for the Plaintiff was Mr Chow Kong Che, who is a retired headmaster of a primary school and was Secretary General of the Hong Kong Teachers' Association from 1977 to 1980.

24. Mr Chow explained that the Association rendered a will-making service to its members. The procedure for this service was for the Association to issue a circular to members calling for applications from those who wished to make a will. By this circular, members were asked to return an application stating their wish to make a will and then to turn up at the Association's offices for the appropriate "ceremony."

25. Although, naturally enough, Mr Chow had no independent recollection of the events in 1979, he was able to say, with the help of a copy of the circular, an application by the deceased and a written record completed by him at the time of making the will, that the deceased had made a will at the Association's premises on 26 May 1979 and he had been the second witness to the execution. Mr Chow explained that the procedure was that the Association's honorary legal adviser, Mr Francis Chaine, acted as the first witness.

26. The application and the written record mentioned above were not dated, but Mr Chow was able to say that this particular ceremony must have been held during the period January 1979 to January 1981 because, according to the written record, a Mr Lee Tak Yu acted as a second witness to some of the wills, and that was the period during which he worked at the Association as welfare officer.

27. Another witness called by the Plaintiff was able to help on the matter of dates; a Mde Wu Su Chang. She has been the Secretary to the Association since 1 February 1977. She identified the application and written record of which photocopies were before the court as documents from the Association's files and she has no doubt that, from their positions in the files, they related to the circular regarding the will-making ceremony on 26 May 1979.

28. These witnesses do not help at all, of course, as to the contents of that will.

The Defendants' Evidence.

29. The Defendants called a Mr Fung Tak Man to give evidence. He is no relation to the Defendants.

30. He told me about the Singapore/Malaysia trip undertaken by the deceased in August 1980.

31. There is no need to go into the detail of his evidence. It is sufficient to say that he gave very convincing, and substantially unchallenged, evidence that, during this trip, which involved staying at about five hotels, the deceased shared his bedroom with Mde Chow Mei-wa, the woman the deceased identified to the Plaintiff as the one with whom he was chatting as he fell asleep.

32. If the deceased had been a younger man, there would have been no doubt as to the inference to be drawn from this evidence. Whether or not that particular inference is justified on the facts before me, there is no doubt that this evidence indicates strongly that the deceased and Made Chow shared a very close relationship.

33. The husband of Man Wai, Mr Mak Pui Ming, gave evidence. To assist the Defendants, I examined him. He said that on 19 February 1982, he went to the deceased's residence after receiving a telephone call from his wife. At about twelve noon, the Plaintiff arrived. He had never seen her before. She told him that the deceased owed Chan Mo Ching a sum of money and the purpose of her visit was to collect that money. He told her that they would investigate the matter and, if true, the money would be paid. The Plaintiff then said that the deceased had a box and she had a key to it. She suggested she could accompany them to take the things from the box. Then Man Kwong and Man Yee arrived and he told them of the box. At about two o'clock, the three of them accompanied the Plaintiff to the bank. Man Kwong gave her a plastic bag and they waited while the Plaintiff went to the box. She returned with a bag of things and gave the bag to him.

34. The Plaintiff then went off and the others returned to the deceased's residence. The bag was, he believes, opened there but he did not see that.

35. He next saw the Plaintiff at the funeral hall. She came to collect the money owed. In the meantime, the family had discovered a cheque for $3,100 already signed, crossed and payable to Chan Mo Chang. The Plaintiff signed a receipt and the cheque was handed to her.

36. He did not see the Plaintiff again and had no telephone conversations with her.

37. The eldest son, Man Fai, was the only child to give evidence on behalf of the Defendants.

38. He said he had not met the Plaintiff before the death. He met her at the deceased's residence on the day of the death. She introduced herself as Mrs Chan. She claimed to be his father's "ordinary" friend. She said the deceased had a box and they could come and get the things. Man Kwong and Man Yee went with her while he went to the police station. Soon after he returned, they came back with a plastic bag. The bag was opened onto the bed; he does not remember by whom. The bag did not contain any will.

39. He saw the Plaintiff at the funeral parlour. She did not introduce herself as the deceased's god daughter or claim any relationship with the deceased. She did not go to the crematorium.

40. Many years later, about 1986, he received a strange telephone call. The caller said she was Mrs Chan and asked if he knew that the deceased had left a will. He answered in the negative. The caller then hung up. She did not explain she was the same Mrs Chan who had opened the deposit box for the family

41. Man Fai said that he had never heard his father talk of making a will.

42. Between seven and eight o'clock on the evening of the death he was with his brothers at the home of Man Hin. He did not know Mrs Chan's telephone number then. He did not know that Chan Mo Ching was the daughter of the Plaintiff.

The Law

43. As to the execution of a will, this may be proved without the production of the instrument, by evidence of persons who were present at that execution.

44. There seems no doubt, certainly since Sugden v. Lord St. Leonards (1876) 1 PD 154, that the contents of a lost will may be proved by secondary evidence; particularly, by evidence of the declarations by the testator both before and after execution.

45. Mr Tsang argues, on the authority of In re Wipperman [1953] 2 W.L.R. 706, that the onus on the Plaintiff to prove the contents of the will is the ordinary standard of proof in civil cases - on the balance of probabilities. That may be so, but it does not tell the whole story. The authorities on the point are conveniently set out in Re Plunkett [1965] V.R. 118. I believe that the thrust of these authorities is that the onus is on a balance of probabilities, but, at the same time, the courts, when considering the evidence adduced to discharge that burden should be cautious about accepting it, because of the potential for error and fraud. I believe this is particularly so where the only evidence as to the contents of a will is by way of the uncorroborated evidence of a single potential beneficiary as to the parole declarations of the testator.

46. In this case, it is not only the credibility of the Plaintiff that has to be considered carefully, but also the veracity of the deceased when he made the alleged statements as what he intended to write into his will and what he had written into it. One of the reasons why the law admits into evidence the declarations of deceased persons as to matters such as pedigree and the contents of testamentary instruments executed by them is because they "may be supposed to have been without motive to speak otherwise than according to the truth. ... If he speaks of [the) provisions [of an instrument he has executed], he can have no motive for misrepresenting them, except in the rare instances in which a testator may have the intention of misleading by his statements respecting his will." (Cockburn C.J. in Sugden at 224 - 225.) Where there are such motives, I take it that the declarations are admissible, but those motives must affect the weight to be given to them.

47. Where a will is shown to have been in the custody of the testator, and is not found at his death, there is a rebuttable presumption of fact that the will has been destroyed by the testator with the intention of revoking it. (Sugden at 217). Sugden's case was similar to the one before me in that the will was kept by the deceased in circumstances that allowed others access to it. In that case, the presumption was rebutted by evidence of statements by the deceased, at a time when then, and thereafter, he did not have access to the will, referring to the will as still subsisting. There is no such evidence in this case.

Finding as to the Execution of a Will.

48. I have no hesitation in finding that it has been well established that the deceased executed a will at the premises of the Teachers' Association on 26 May 1979, some eighteen or nineteen months before his death on 19 February 1982.1 accept the substance of the Plaintiff's evidence on this aspect of the matter on the basis that it is amply corroborated by the evidence of Mr Chow and Mde Wu, who are undoubtedly witnesses to the truth.

The Veracity of the Deceased.

49. Assuming for the moment that the Plaintiff is accurate and truthful in her evidence as to what she says the deceased told her, I must say that I am uneasy about any supposition that the deceased could have had no motive to misrepresent the contents of the will.

50. It is clear to me that the deceased was fond of female companionship. There is, of course, nothing wrong with that, but the fact that he was having an intimate relationship with Mde Chow Mei-wa while still, according to the Plaintiff, maintaining a close liaison with her, indicates to me that he might well not have been beyond maintaining "a line" to the Plaintiff to keep her affections.

51. I come to no firm conclusion about this aspect of the matter, but I feel my concern must go into the scales when considering if the Plaintiff has proved her case.

The Credibility and Reliability the Plaintiff.

52. I was not at all impressed by the evidence of the Plaintiff. I fully appreciate that she is not a lady who might be expected to have a memory unsullied by the ravages of age, and that she was speaking about some events that happened more than ten years ago. But I must take her evidence as I find it, and I find it, at least, unreliable. I think I have set out enough of her evidence to indicate why I believe this concern to be justified. In particular, at some stages, I think the Plaintiff wanted me to believe that she had actually seen the will and could give some direct evidence of its contents. It took some time to ascertain that this was misleading, and I believe that there was some evasion in this respect.

53. I mention some other unsatisfactory features of her evidence:

54. I do not understand her evidence about the deceased writing down her name on the will and asking her to sign as well. I do not know why she was asked to sign the will. Here, one should bear in mind that the execution of the will was being done in front of a solicitor as the first witness.

55. Then there is her evidence about the key to the safe deposit box. She says that the deceased told her not to give the key to the children even if they begged on bended knee, and that, if there was a dispute, they would do her down. And yet, she volunteers to the children that she has the key, takes them to the bank and turns over the contents of the box, containing, she believes, the will giving her a share of the estate, to the people the deceased advised her against, without, apparently, a qualm.

56. Even her version of the contents of the will is not always clear. Mostly, she said that Man Fai was to have two shares, but once she said that the eldest son and the eldest grand-son were to have two shares altogether. She said that Man Kwong was disinherited, but later, apparently by mistake, she said he was to have a share, then correcting his name to that of Man Hin.

57. She waits for four years before making any inquiry about her share of the estate. It is not beyond the experience of lawyers that estates take four years, and much longer, to wind up, but I believe that is most improbable that a layperson knowing that she is a beneficiary would sit quietly for this length of time without even asking how things were getting along and when could she expect to receive her share.

58. In my judgment, the Plaintiff comes nowhere near establishing by her evidence cogent, reliable and sufficient proof of the contents of the deceased's will.

The Presumption of Revocation.

59. I am satisfied, on the evidence of Man Fai, that the will was not in the plastic bag when it was opened at the deceased's residence. I have no reason to believe that Mr Mak and any of the other defendants extracted the will before that. Man Fai was an impressive witness and I am satisfied that be was telling me the truth. It is improbable that one of the other defendants would have extracted the will and suppressed it as an independent enterprise without telling the eldest son.

60. Therefore, the presumption of revocation arises. What is there to rebut it? Nothing, in my view. Unlike Sugden's case, there is no evidence at all, even accepting the Plaintiff's evidence, that the deceased made declarations regarding the contents of the will at a time when it is unlikely he would not afterwards have changed his mind. The fact that, according to the Plaintiff, he had disinherited two of his own children must, in my view, give rise to the serious possibility that he might change his mind about this. Some of the Plaintiff's own evidence indicates that he might have had in mind the possibility of making other wills. The deceased's friendship with Mde Chow Mei-wa is another motive for the deceased to change his mind, at least, as far as his the benefit to the Plaintiff is concerned.

61. I find that the presumption of revocation has not been rebutted.

The Result.

62. In the result, I find that the Plaintiff has not made out her case and her claim is dismissed.

Costs.

63. There seems to be no reason why the costs should not follow the event so I make an order nisi that the Plaintiff pay the Defendants' costs.