HO YIU SUM v. HO YIU LEUNG KENNY

HCAP 20/2015

[2024] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 20 OF 2015

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(By original action)

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(By counterclaim)

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J U D G M E N T

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Introduction

1.  This is the trial of the counterclaim brought by Mr Ho Yiu Leung Kenny (“Kenny”) against Mr Ho Yiu Sum (“Sum”).

2.  In this probate action, Kenny is the plaintiff (by counterclaim) and the defendant (by original action). Sum is the 1^st defendant (by counterclaim) and the plaintiff (by original action).

3.  The trial is conducted under Order 76, rule 12 of the Rules of the High Court, pursuant to the directions made by Master J Wong on 18 January 2024, by consent of the parties.

Background

4.  This probate action concerns the estate of Madam Ki Yin Ping (“the deceased”). She was born in 1925. She passed away at the age of 89 in July 2014. She was survived by her five children. Sum is the eldest son and Kenny the youngest.

5.  The other three children have not participated in this action. Nor have they made any witness statement, whether for Kenny or Sum.

Procedural history

6.  Sum commenced the present action in 2015. He sought to propound a will purportedly made by the deceased dated 14 June 2012 and prepared by a firm of solicitors. When the will was made, the deceased was about 87 years old. Under its terms, Sum was the sole executor and the sole beneficiary.

7.  Kenny disputes, among other things, the testamentary capacity of the deceased when the will was purportedly made. By counterclaim against Sum, Kenny seeks an order that the court do pronounce against the validity of the will. In his counterclaim, Kenny also joined Ms Lee Wing Sze (“Lee”) as the 2^nd defendant (by counterclaim). That counterclaim concerns a property at Flat G, 27/F, Tower 1, Tuen Mun Town Plaza, No 3 Tuen Lung Street, Tuen Mun, New Territories, which was beneficially owned by the deceased.

8.  On 20 May 2014, the deceased purportedly signed a provisional sale and purchase agreement to sell the property to Lee. There was also a formal sale and purchase agreement purportedly signed on behalf of the deceased subsequently.

9.  Kenny says that when these agreements were signed, the deceased was not of sound mind and was not capable of making a decision to sell the property. Hence, the agreements are void. He seeks a number of reliefs to that effect against both Sum and Lee.

10.  The case was eventually settled as between Kenny, Sum and Lee in late 2023. A consent summons was filed on 28 November 2023. The settlement terms were recorded in the order of Master J Wong. Upon various undertakings given by the parties respectively, a number of orders were made, including:

(1)  Sum’s claim and his defence to Kenny’s counterclaim be withdrawn.

(2)  Lee’s defence to Kenny’s counterclaim be withdrawn.

(3)  There be a trial of Kenny’s counterclaim on affidavit evidence pursuant to Order 76 rule 12, in which “the Court shall, if it deems fit, pronounce against the validity of the alleged will dated 14 June 2012”.

(4)  Sum and Lee shall not take part in the trial.

11.  Accordingly, Sum no longer seeks to propound the will.

12.  As for Lee, no express order to dispose of Kenny’s counterclaim against her has been made. However, as confirmed by Kenny at the pre-trial review hearing, he is no longer pursuing any reliefs against Lee as stated in prayer paras 3 to 4(D) in his counterclaim.

13.  Therefore, the only matter which is left to be disposed of is Kenny’s counterclaim against Sum. He seeks a declaration that the court should pronounce against the validity of the will, and also that letters of administration be granted to Mr Tsang Chung Yu, a solicitor, as the sole administrator of the estate of the deceased.

14.  The choice of Mr Tsang was agreed between the parties as part of their settlement terms, subject to the approval of the court.

15.  The trial was set down for 10 July 2024, with three hours reserved.

The evidence before the court

16.  In this trial, Kenny relies on his second, third and fifth affirmations and the second affirmation of Ho Chun Ho Jason. Jason is the son of Kenny and grandson of the deceased. According to his evidence, he lived with the deceased from 1988 until 2013 when she was hospitalised.

17.  Also, Kenny relies on a report of Dr Nip Wai, a psychiatrist, dated 26 May 2021. Dr Nip is Kenny’s expert, pursuant to an earlier direction made by master.

18.  At the beginning of the trial on 10 July, I considered that it was not necessary to call the oral evidence of the factual witnesses. Accordingly I admitted the above affirmations of Kenny and Jason into the evidence without cross-examination. See the same approach which was taken in Lau Po Sheung v Lo Yuen Ching Cindy [2023] HKCFI 1850 at para 10.

19.  At the PTR hearing, I also directed that Dr Nip’s report be admitted into the evidence without oral testimony. When I reviewed the papers before the trial on 10 July, I was under the impression that Dr Nip’s report was the only expert report compiled in this action.

20.  However, in the course of the opening submissions of Kenny, it was revealed to me that in fact three other medical experts had been engaged and had given their opinions prior to the settlement. They were:

(1)  Dr Li Cheuk Wing, a psychiatrist engaged as Sum’s expert;

(2)  Dr Wong Chi Chiu Maurice, a neurologist engaged as Sum’s expert; and

(3)  Dr Yu Yuk Ling, a neurologist engaged as Kenny’s expert.

21.  The question for all the experts was whether the deceased had the testamentary capacity when she executed the will on 14 June 2012. The two experts of Sum in fact tendered an opinion opposite to that of Dr Nip. The former answered “Yes” whereas the latter answered “No”.

22.  Upon learning this, I considered that I ought to take a look at these expert reports and consider whether I should take them into account in my factual findings. I therefore adjourned the trial to today and directed that a supplemental bundle of expert evidence be prepared.

23.  I also invited Kenny’s counsel, Mr Enzo Chow, to address the question of the proper scope of the duty of a party to act fairly in a probate action in the circumstance where the opposite party is no longer pursuing his claim or defence.

24.  Lastly, as for the position of the other siblings, at the pre-trial review hearing, I directed that Kenny should serve the notice of trial and other papers on them. At the hearing on 10 July, I directed Kenny to notify the siblings that the trial had been adjourned to today.

25.  Having reviewed the affirmations of service, I am satisfied that notice has been given to the other three children of the trial on 10 July and also of today’s adjourned hearing. In fact, two of them had earlier acknowledged the receipt of the documents and indicated that they would agree to the orders sought by Kenny.

Kenny’s case

26.  In this trial, Kenny’s position is that when the will was made, the deceased did not have the requisite testamentary capacity due to her underlying dementia limiting her cognitive functioning. His case, as revealed by the factual and expert evidence, is as follows.

27.  The deceased received no formal education and was illiterate. She could not read and write except numbers, Chinese characters of her name and numeric characters.

28.  According to Kenny and Jason, the deceased started to have signs of deteriorating memory in around 2009 and 2010. In 2010, with the consent of all the children except Sum, she was assessed by a neurologist and was diagnosed to have suffered from serious dementia. I pause here to note that there is no documentary record of the assessment or any note made by that neurologist. He was approached some time in 2021. He replied that he was not able to retrieve any record of the deceased as he only kept his patients’ records for the past seven years.

29.  In about 2011 and 2012, the deceased had to rely on Kenny and Jason on her daily lives. Her memory had become defective and unreliable that there was almost a total loss of memory of recent events. She was frequently unable to recognise her children and Jason.

30.  It is against this background that the will was made in June 2012. She only put an “X” on the will. It should be noted that she was previously able to write her own name.

31.  In March 2013, the deceased suffered from a fall and was admitted to Tuen Mun Hospital for a few months.

32.  Dr Nip’s opinion is that her clinical features between June 2012, namely the date of the will, and July 2014, namely the date of death, were compatible to the diagnosis of major neurocognitive disorder due to vascular disease. Dr Nip wrote in his report:

“15. In the Deceased’s case, the diagnosis is supported by reports from informants and hospital charts with medical observations supporting the presence of significant cognitive decline over the years. Brain imaging in 2013 also documented small vessel disease compatible to previous insults to the brain tissue caused by clogged smaller blood vessels. Her subsequent death in 2014 was substantially caused by a stroke reflecting her underlying ill health of her brain vasculature.

16. Initially from June 2012 to March 2013, the severity of the dementia was mild with only difficulties with instrumental activities of daily living, namely, housework, cooking and managing money. However, the severity progressed to become severe in March 2013 that the Deceased became fully dependent as evidenced by her discharge problem from the hospital necessitating admission to a residential care home with eligibility up to the level of Higher Disability Allowance.”

33.  Dr Nip concluded that it is highly likely that the deceased did not have the required testamentary capacity at the time of the making of the will due to her underlying dementia limiting her cognitive functioning.

34.  Dr Nip arrived at his conclusion based on the evidence of Kenny and Jason and a review of the medical records generated during the period of hospitalisation:

“7. In view of her complicated physical and mental needs, the Deceased could not be discharged from the hospital as originally planned. Her family members no longer had capacity to look after her at home. In late March 2013, she was transferred to rehabilitation ward for further infirmary care. According to reports from her attending doctors, she suffered from moderate level of dementia, occasional incontinence, subnormal speech expression and necessity of frequent assistance in her activities of daily living. Her cognitive impairment rendered her mentally unfit to sign statements as certified in May 2013 by her attending doctor. By September 2013, she was granted Higher Disability Allowance by the Social Welfare Department by grounds of her need to be continuously supervised as a patient with severe dementia.

8. The Deceased received formal psychiatric assessment in Tuen Mun Hospital conducted by a visiting psychiatrist from Castle Peak Hospital on September 4, 2013. It was concluded that she suffered from dementia to a severity that she was confused in the ward, failed to tell her certain personal details and had suboptimal safety awareness about her fall risks because of poor insight into her own health problems. MMSE showed a subpar score of 12 out of 30, consistent with her underlying cognitive impairment. It was hence, recommended that guardianship order should be applied for her being mentally unfit to consent to placement arrangements.

9. Eventually, the Deceased was discharged from Tuen Mun Hospital on October 3, 2013 to a residential care home for the aged located in Fanling. According to hospital charts, throughout the index admission in Tuen Mun Hospital from March to October 2013, she frequently required physical restraining in bed for her being confused and disoriented. Her medication administration records also showed she needed additional pharmacological sedation using haloperidol, an antipsychotic drug, to control her nighttime confusion repeatedly from May to August 2013.”

The opinions of the other medical experts

35.  Dr Yu, the neurologist engaged by Kenny, was of the opinion that the deceased was suffering from dementia of a neurodegenerative nature at the moderate to severe stage in September 2013. She commented that there was no medical document prior to March 2013 to ascertain the date of onset of the dementia. She was of the view that the neurologist who saw the deceased in 2010 should be located and a formal report and clinical notes be obtained from him or her in order to elucidate the deceased’s neurological and mental status at that time. Before that was obtained, Dr Yu would reserve her opinion on whether the deceased had the requisite testamentary capacity as of June 2012.

36.  As for the two experts engaged by Sum, Dr Wong is the neurologist. He also made the same comment that there was no medical documentation prior to 2013 to ascertain the date of onset of dementia. Dr Wong continued to say:

“The Deceased had an accelerated course of mental deterioration since late March 2013. Prior to late March 2013, she was not noted by the medical staff to be confused and she stayed home and could cook without help of a caretaker. If the rate of her mental function deterioration in [Tuen Mun Hospital] is taken into account, it is likely that she had the required mental capacity on 14^th June 2012 to make the will and make judgment on financial arrangements.”

37.  According to the joint neurology report, Dr Wong did not appear to give much weight, if any, to the factual account given by Kenny and Jason.

38.  Dr Li is the psychiatrist. Her opinion is that the severity of the dementia in 2013 was moderate. However, the definite date of its onset is not possible to pin down due to lack of medical documents before 2013. She commented that the reliance on the statements from Kenny and Jason was contentious because they might have an interest in the outcome of this litigation. She considered that the deceased had the mental capacity to make the will in June 2012.

39.  She took into account the following matters:

(1)  There are no impartial documents available with regard to her mental or physical state as of June 2012.

(2)  It is known that dementia caused by vascular disease typically affects cognition in step-wise fashion. It is therefore possible that her cognition was significantly better in June 2012 than what was noted in Tuen Mun Hospital in 2013.

(3)  The content of the will was simple. The deceased’s assets were not extensive. There was only one beneficiary. The cognitive capacity required to make that will would not be high.

(4)  The attesting solicitor and the legal secretary who also witnessed the signing of the will stated in their witness statements that the deceased appeared well on the day. They both thought that she was capable of making the will.

Discussion

40.  I would like first to deal with the question whether in this trial I should take into account the expert evidence of Dr Yu, Dr Wong and Dr Li, which are not relied on by Kenny.

41.  It is Mr Chow’s submission that I should not do so. Sum is no longer pursuing his case and hence, Mr Chow submits, the expert evidence adduced by him is no longer of relevance. In any event, it was the consensus of the parties that only Dr Nip’s expert report should be admitted into the evidence.

42.  I disagree with that submission. It is true that Sum is no longer seeking to pursue his case in this action. Hence, technically speaking, no one is putting forward the reports of Dr Wong and Dr Li as evidence. Nevertheless, in my view, when making factual findings on the deceased’s testamentary capacity, I should not simply ignore the two reports and the opinions expressed there which are unfavourable to Kenny’s position. Expert witnesses should act impartially and independently and owes an overriding duty to assist the court. It must be stressed that the duty is to the court and not to the party who has instructed them and paid for their services.

43.  Furthermore, the doctors in this case have given opinions in the specialist areas in which they practise and they have opined on the one major issue in this trial, namely the testamentary capacity of the deceased.

44.  Overall speaking, their opinions would be of probative value to the major issue in this case and hence of assistance to the court. At the end of the day, I may or may not accept their evidence. But a consideration of the conflicting opinions would, I believe, result in a factual finding made on a more solid foundation.

45.  Furthermore, Kenny now seeks a declaration that the will is void for want of testamentary capacity. This kind of declaration is not lightly granted. I consider that it would be conducive to the court’s deliberation to take into account all the expert evidence before deciding whether to grant that declaration.

Factual findings

46.  There is no challenge to Kenny and Jason’s factual account of their interactions with the deceased and the observations which they made of the deceased’s behaviour or demeanour from 2009 onwards. Their account is reasonably plausible and coherent. I accept the account as true in full.

47.  As for the expert evidence, there are two notable features. First, the doctors have carried out a retrospective assessment of the deceased. They did not have the benefit of examining the deceased in person. Second, to make the task even more difficult, there are no contemporaneous medical records on the condition of the deceased as of or around June 2012 when she made the will. The earliest available records start from March 2013 when the deceased was hospitalised after her fall. But that was about nine months after the making of the will.

48.  As we have seen above, for Kenny’s experts, Dr Nip was able to come to a conclusion by taking into account the factual narrative of Kenny and Jason, whereas Dr Yu did not find it suitable to give an opinion at this stage without seeing the neurologist’s report in 2010. For Sum’s experts, they were also able to give an opinion notwithstanding the limitation in the medical documentation.

49.  My task is therefore to consider which expert or experts’ opinion I should prefer. For that purpose, it is critical to examine the reasoning by which the doctors deduced the mental condition of the deceased as of June 2012 based on subsequent medical records.

50.  On the whole, I prefer Dr Nip’s evidence to Dr Li’s and Dr Wong’s.

51.  Dr Nip gave weight to the factual account of Kenny and Jason, which I have accepted in full. Dr Nip pointed out that the two of them had close connections with the deceased and were able to observe her behaviour over time, and what they had described for the period from 2009 onwards supports the conclusion that she did not have the requisite mental capacity in June 2012.

52.  I should also point out that Dr Nip did say in his report that the “[b]rain imaging in 2013 also documented small vessel disease compatible to previous insults to the brain tissue”. This shows that the brain damage must have happened some time before. On the whole, I find that Dr Nip’s conclusion is based on sound and plausible foundation.

53.  By contrast, Dr Li apparently gave some weight to the witness statements of the solicitor and the legal secretary who witnessed the signing of the will. He did later state his position in the joint psychiatric report. He considered that the two witness statements of the witnesses of the will to be “strong evidence that the deceased had testamentary capacity if the court finds her statement reliable”.

54.  Sum is no longer pursuing his case. Hence, the statements of the two witnesses of the will are not admitted into the evidence for this trial. In any event, according to their account, before the making of the will, they had never seen or known the deceased. The process of interviewing the deceased and executing the will took only one and a half hours on the day. I would be very hesitant to place any weight on any observation they might have when I determine the issue of testamentary capacity.

55.  For that reason, one of the major evidential planks relied on by Dr Li no longer stands.

56.  As for the opinions of the two neurologists, I have reproduced Dr Wong’s short reasoning above. By contrast, Dr Yu made the following observation:

“In most patients with Alzheimer’s dementia, the progression is gradual over 5 to 10 years. In those with vascular dementia, the deterioration is stepwise, depending on the number and severity of the stroke(s). In the 9-month period between 14^th June 2012 and March 2013, the Deceased did not have stroke or other acute neurological disorder. It is therefore most unlikely that the Deceased’s cognitive function was normal in June 2012, but had rapidly deteriorated to moderate to severe dementia in March 2013.”

57.  As a matter of analysis, I find Dr Yu’s reasoning to be more plausible than Dr Wong’s on the likely rate of deterioration between June 2012 and March 2013.

58.  On the whole, having considered the opinions of all the medical experts and their underlying reasoning, I prefer Dr Nip’s opinion as it is based both on the factual evidence of Kenny and Jason, which I have accepted as true, and his analysis of the medical records since March 2013 in conjunction with and giving due weight to such factual evidence.

59.  Accordingly, I find that the deceased did not have the testamentary capacity when she made the will in June 2012. The will is therefore not valid.

Orders

60.  For the above reasons, I make the following orders:

(1)  There be a declaration that the will of the deceased dated 14 June 2012 is null and void or otherwise of no effect by reason of lack of testamentary capacity at the time of the making of the will;

(2)  Letters of administration of the estate of the deceased be granted to Mr Tsang Chung Yu, a solicitor, as the sole administrator of the estate of the deceased (subject to the terms and conditions contained in the draft engagement letter as per Appendix A to the consent summons filed on 28 November 2023) and upon his compliance with all the usual and formal procedural requirements of the Probate Registry;

(3)  All the claims that Kenny has in this action against Lee (including prayers (3) to 4(D)) in his amended defence and counterclaim be dismissed;

(4)  There be liberty to apply;

(5)  There be no order as to costs of the counterclaim, including any costs previously reserved; and

(6)  Kenny’s own costs be taxed in accordance with the Legal Aid Regulations.