MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

HCAP 37/2015

[2025] HKCFI 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

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J U D G M E N T

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A.  INTRODUCTION

1.  This probate action concerns the validity of the will made by Madam Lo Siu Fung (the “Deceased”)  on 7 October 2013 (the “Will”). The issues in this trial are as follows: Issue I – Whether the 1^st defendant satisfies the burden of propounding the Will; Issue II – Whether the Will was procured by undue influence exercised by the 1^st and/or 2^nd defendants; and Issue III – Whether the real purpose of the 1^st and/or 2^nd defendants’ procuring the Deceased to make the Will was to prevent those who would otherwise be entitled to her estate on intestacy from impugning the inter vivos transactions the Deceased entered into which are detailed in paragraphs 22 to 26 below.

B.    UNDISPUTED FACTUAL BACKGROUND

2.  I adopt below the background facts set out in the plaintiffs’ Closing Submissions, which are largely undisputed or indisputable.

3.  The Deceased died on 18 September 2014 in Hong Kong at the age of 85.  She was born in Singapore and she had a younger sister, Madam Lo Kam Fung (勞金鳳), who gave evidence at the trial.

4.  The Deceased was married to Mr Mak Kan Chiu (麥錦超)  (“Mr Mak”). Mr Mak died in 1996.  There were, born to the marriage between the late Mr Mak and the Deceased, 5 daughters.  In descending order of seniority, they are: (a)  the 1^st plaintiff, Mak Ngun Tai (麥銀娣), born in 1957; (b)  the 2^nd defendant, Mak Ngan Lai (麥銀麗), born in 1959; (c)  the 2^nd plaintiff, Mak Lai Ping (麥麗萍), born in 1961; (d)  Mak Lai Wun (麥麗煥), born in 1963 but predeceased the Deceased in 1994; and (e)  the 3^rd plaintiff, Mak Mei Wa (麥美華), born in 1965.  The Deceased had 16 grandchildren in total.

5.  Under the Will, the 1^st defendant, Fung Ming Ip, who was a good friend of the 2^nd defendant and frequently visited, and later resided in, her residence keeping the Deceased company during her last 3 years of life, was appointed the executor and sole beneficiary of her estate.

6.  Koon Yau Kuen (官有權)  (“Koon”)  and Jamis Koon (官仲銘)  (“ Jamis”)  are the 2^nd defendant’s husband and son respectively.  Ella Koon(官恩娜)  (“Ella”)  and Mallory Koon (官恩沂)  are the 2 daughters of the 2^nd defendant.

7.  The Deceased received no formal education. She worked as a servant in a family in Dongguan when she was a child and teenager.  She only knew a few Chinese characters and was illiterate.

8.  Since the death of her husband in 1996, the Deceased had been living alone in her own property at 11/F, No 113 Hennessy Road, Wanchai, Hong Kong until 2011.  When she was living in Wanchai, she enjoyed regular contact with the plaintiffs and her younger sister, who all lived on Hong Kong Island.  The 2^nd defendant, who lived in Kai Leng, New Territories since 2008, visited her less often.

9.  The Deceased stopped working in her 40s and was quite wealthy.  To a considerable extent, her fortune was derived from her late husband who ran a cleaning business, Chiu Kee (超記).  The Deceased used to be the financial controller in that business. 

10.  She held a portfolio of landed properties, some in her sole name and some in joint names.  After Mr Mak passed away, she held in her sole name 4 properties: (a)  11/F & Flat Roof, No 12 Gage Street, Hong Kong (the “Gage Street Property”); (b)  5/F including its Rooftop, No 44 Johnston Road, Hong Kong (the “Johnston Road Property”); (c)  Flat B, 2/F, Block 1 & Car Parking Space No A69 on Carpark Floor A, Phoenix Court, No 39 Kennedy Road, Hong Kong (the “Phoenix Court Property”); and (d)  Unit A, 6/F, Kenny Court, 22-28 Kennedy Street, Hong Kong (the “Kenny Court Property”).  She held in joint names: (a)  11/F, Hip Sang Building, 113 Hennessy Road, Hong Kong (the “113 Hennessy Road Property”)  with the 1^st plaintiff; and (b)  Flat D, 9/F, 477 Hennessy Road, Hong Kong (the “477 Hennessy Road Property”)  with the 3^rd plaintiff.  Except her residence at the 113 Hennessy Road Property, she held the aforesaid properties for rental income.

11.  Until the events described below, the Deceased also held significant fixed deposits, valued at over HK$25 million, principally with Standard Chartered Bank (“SCB”).  She also had time deposits in ICBC (Asia)  and China & South Sea Bank (later became part of Bank of China (Hong Kong)).  Despite her wealth, she was extremely frugal.

12.  In mid-2000s, the Deceased’s mental condition began to deteriorate.  She started to display symptoms of Obsessive Compulsive Disorder (“OCD”).  It took her a long time to leave her flat because she was always in fear that the door to her home was not locked or the stove was not turned off.  She was highly irritable and constantly in a state of high anxiety.  She would telephone Samuel Mak, the 2^nd plaintiff’s husband, in the small hours of the morning telling him that she was very much in fear and she needed to talk to him for comfort.  The Deceased could not find her way back home on 2 separate occasions, near the end of 2000s.

13.  The Deceased regularly visited the banks.  There were branches near her home at 113 Hennessy Road.  She needed the 1^st plaintiff, and later the 2^nd and 3^rd plaintiffs, to accompany her to go to the bank. 

14.  In the second half of 2010, the Deceased’s eyesight deteriorated so badly that she was no longer able to live on her own.  She relied on St James’ Settlement to bring her meals.  The records of St James’ Settlement reveal the following:

Date	Record
23.10.2010	The Deceased displayed signs of anxiety disorder.  She was extremely irritated by the thought that those delivering meal to her would take her to see doctors.
28.04.2011	The Deceased’s anxiety problem deteriorated.  She became disturbed by things large and small ranging from managing her own finance to small things she came across.
24.06.2011	The Deceased’s anxiety problem further deteriorated. The care provider talked to the Deceased’s son-in-law and he agreed to let the Deceased be referred to Integrated Community Centre for Mental Wellness (ICCMW)  for follow-up.
07.07.2011	The care provider of St James’ Settlement, representative from ICCMW and the son-in-law visited the Deceased at her home.  Despite the advice by the visitors that she should go to see doctor, the Deceased refused.
12.08.2011	The Deceased refused to have the meal at home.  She insisted on taking the meal to place outside to eat and would put the food in plastic bag.

15.  The Deceased stubbornly refused to receive treatment for her eyes.  The plaintiffs ran out of ideas to persuade her to change her mind.  The 1^st plaintiff had to resort to the help of the 2^nd defendant. 

16.  The Deceased eventually underwent cataract removal operation at the St Teresa’s Hospital on 27 September 2011.  The 2^nd defendant gave consent to surgery for the Deceased after she was seen by a psychiatrist, Dr Ronald Chen, and his certification was that the Deceased was unfit to give consent to the surgery.

17.  The Deceased’s way of life changed markedly after the surgery and she moved to live with the 2^nd defendant at Kai Leng until she passed away.  This period ie from September 2011 to September 2014 is hereinafter referred to as “the relevant period” or “the last 3 years”.

18.  In Kai Leng, she had little contact with the plaintiffs and her younger sister, unlike the days when she lived in Wanchai.  The reason for this is in dispute.  She seldom saw them.  She no longer used her old mobile phone.  Telephone contact became infrequent.  Whenever any of the plaintiffs wished to speak to the Deceased, she had to call the number of the new mobile phone which was supplied to the Deceased by the 2^nd defendant, and later the 1^st defendant’s mobile phone.  The plaintiffs say that the 1^st defendant invariably made up excuses to say the Deceased could not come to the phone.

19.  The plaintiffs and Madam Lo Kam Fung only managed to visit the Deceased on few occasions.  During the visits and the sparse phone conversations, it was apparent that the Deceased relied heavily on the 1^st and 2^nd defendants for her daily living.

20.  When the Deceased was living with the 2^nd defendant, she changed, in relation to her rental properties, the collecting agent – from Samuel Mak to the 1^st defendant; and she made report to the ICAC complaining against the conduct of Samuel Mak (but the investigation was soon dropped by the authorities).

21.  During the relevant period, the Deceased also entered into highly suspicious transactions (apart from the Will).  They were so out of her character which cries out for an explanation.  They were all manifestly disadvantageous to her.  These transactions, described in paragraphs 22 to 26 below, will be referred to as the “inter vivos transactions”.

22.  The Deceased stopped renewing her long-standing time deposits.  Instead, most of the time deposits were withdrawn out of her accounts soon after they reached maturity.  Before the opening of the joint account by the Deceased and Jamis with Hang Seng Bank (the “HSB Joint Account” or the “Joint Account”)  in February 2012, the proceeds would be paid over to Jamis directly.  After the Joint Account was opened, the proceeds of time deposits, when they matured, would first be deposited into the Joint Account and subsequently withdrawn by Jamis.  Also, on 17 January 2012, a sum of HK$1,420,000 was transferred from her account to Jamis.

23.  The Deceased purchased House No 31, Belair Villa, No 9 Yu Tai Road, Fanling (the “Belair Villa Property”)  together with Jamis in early 2012 and the transactions regarding that property were puzzling.  By way of an assignment dated 27 February 2012, the Deceased and Jamis acquired the Belair Villa Property as tenants in common.  The purchase was effected without any mortgage financing.  About 6 months later, they executed another assignment dated 3 September 2012 taking that property between themselves as joint tenants.  Then in November 2012, the Belair Villa Property was mortgaged to Hang Seng Bank to secure a HK$4 million loan.  Both the Deceased and Ella were named as co-borrowers.  The monthly repayment for that loan (HK$15,086.70)  was directly debited from the HSB Joint Account.

24.  At the relevant times, which was sometime between March and June 2012, the Deceased told the plaintiffs during their surprise visit in March 2012 and the 2^nd plaintiff on the phone that she had bought a property with Jamis, each having half share (“一人一半”).  The Deceased added that she had already paid for her share.  She also told Madam Lo Kam Fung words to that effect in one of the few phone calls she made to her sister.  But as the bank records show, the Deceased actually paid to Jamis HK$14,722,000 in total (HK$9,772,000 on 16 January 2012 and HK$5,000,000 on 14 March 2012)  for the purchase.  The relevant transfer slips contained remarks of “買樓別墅” and “買樓” respectively.

25.  In November 2013, the Deceased charged the Phoenix Court Property in favour of Hang Lee Finance to secure a HK$9 million loan advanced to Koon.  After the appointment of the administrator pendente lite (“APL”)  in 2016 and his enquiries with the finance company regarding the loan and the mortgage, that mortgage was discharged and the title deeds were returned to the APL in 2017.

26.  The Deceased also sold the following properties (and in relation to the one sold 13 days before her death, it was through the 1^st defendant as her attorney).  The proceeds of sale of the following properties were again deposited in the Joint Account and subsequently withdrawn by Jamis.

Date of assignment	Properties	Price
16.12.2013	The Kenny Court Property	$6.38M
30.04.2014	The Johnston Road Property	$4.1M
05.09.2014	The Gage Street Property	$5.95M

27.  The Will was made in October 2013, after all of her time deposits had basically disappeared and before her solely owned landed properties were either sold or mortgaged.

28.  When the Deceased died, basically all her fixed assets had gone.  She only had $17,797.43 held in her sole name bank accounts.  Her only remaining solely owned landed property, the Phoenix Court Property, was heavily encumbered.  The HK$4 million loan borrowed in 2012 was still outstanding.

29.  The APL’s investigation reports showed that it was Jamis who stood to benefit the lion-share of the Deceased’s assets.  He took at least $37,368,571.20.  It consisted of (a)  $21,818,571.2 being the total sum withdrawn or transferred out of the Deceased’s bank accounts (including the monies used to buy the Belair Villa Property)  and (b)  $15,550,000 being the proceeds of sale of the Deceased’s 3 solely owned properties. These findings are not challenged by either defendant.  

C.    THE PLAINTIFFS’ POSITION

30.  In the absence of reasonable explanation supported by credible evidence, the plaintiffs submit the reasonable inference to be drawn is that the Deceased did not enter into these inter vivos transactions, which were all to her manifest disadvantages, under her own free will, or that the properties transferred are simply held on resulting trust for the Deceased.  Such state of affairs is consistent with her being subjected to undue influence when she made the Will.

31.  The very fact that the Deceased sold or mortgaged all of her sole name properties after the making of the Will and allowed the proceeds to be moved out of her account in favour of Jamis was puzzling.  It was a contra-indicator of any testamentary intention to benefit the 1^st defendant.

32.  The plaintiffs assert that as propounder, the 1^st defendant bears the legal or persuasive burden of proving the Will in solemn form: Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387.  On the other hand, the plaintiffs accept they bear the burden of proving the existence of undue influence and also the real purpose of procuring the Will to be made: Re Edwards [2007] WTLR 1387 and Li Chi Loy v Li Lai Lan [2008] 5 HKLRD 74.

D.  EVIDENCE OF THE KEY FACTUAL WITNESSES

33.  It is the defendants’ case that there is nothing irrational about the Deceased making the Will in favour of the 1^st defendant and giving away her assets to Jamis during her lifetime.  An alternate and more plausible answer is that she shared and left her assets to those she adored and brought her a much happier life, from one that was lonely and undignified, instead of those who were repulsive of her mere presence.  Whether this was indeed the case of course very much depends on whether the evidence of the 1^st and 2^nd defendants are credible.

D1.  The 1^st defendant

34.  I agree with the plaintiffs that the 1^st defendant is neither a credible nor reliable witness.  I reject his testimony whenever it is inconsistent with the plaintiffs’ case.  I would highlight 3 particular aspects of his evidence which are wholly unacceptable.

35.  First, the 1^st defendant described that the Deceased was reborn after the cataract surgery.  She was no longer anxious.  He said the Deceased was all along happy until she suffered from lower back pain in July 2014.  He alleged that the Deceased never had any psychiatric or psychological problems and so she was not taken to visit a psychiatrist or psychologist.  It was not the case that he tried bringing her to visit psychiatrist or psychologist, but she refused.

36.  However, the medical records from the North District Hospital show a completely different picture, revealing that the Deceased had depressed symptoms, even before the onset of her lower back pain.  The Deceased was reported by the 2^nd defendant to be an anxious person all along.  She was further referred to see a psychogeriatric expert.  It was recorded that she was constantly in worry of being abandoned by her children.

37.  When the 1^st defendant was confronted with the aforesaid records, he just conveniently denied having any knowledge of the Deceased’s mental condition, either by saying that he was not paying attention to what Dr Chen said or barely asserting that he did not know.  He could not provide any explanation for the inconsistencies between his description of the Deceased’s condition and the North District Hospital records (that the Deceased was always an anxious person and she had depression issue before the onset of lower back pain).

38.  Second, as to whether the 1^st defendant had made up excuses not allowing the Deceased to speak with the plaintiffs on the phone, upon being questioned by the court, the 1^st defendant admitted that between September 2011 and March 2012, the plaintiffs indeed did call him on about 10 different occasions and expressed their wish to visit the Deceased.  On half of those occasions when the Deceased was actually at home, the 1^st defendant said he would welcome the plaintiffs to pay a visit.  But then every time the plaintiffs would just change their mind and chose not to go to Kai Leng.  Such evidence from the 1^st defendant simply defies common sense and must accordingly be rejected.  It also fails to explain why the plaintiffs would mount a surprise visit.  The absurdity of his answer goes a long way to show his intention, along with the 2^nd defendant’s, to cut off contact between the Deceased and her daughters.

39.  Third, under cross-examination, when he was shown the bank records of the HSB Joint Account, the 1^st defendant claimed that all the transactions therein were carried out by the Deceased herself.  He said the cash withdrawn from that joint account was withdrawn by the Deceased to play mahjong.  She could spend over HK$100,000 a day at mahjong school.  He further alleged that the Deceased lost in her mahjong games every day but she still went back to play the next day.  He said none of the players in mahjong school can earn monies.  All these suggestions are totally contrary to the frugal character of the Deceased and common sense.  Further, they are all unpleaded.  When he was asked why that was so, the 1^st defendant said that he did not pay attention to that previously.  Such explanation is contrived, given that the transactions in the HSB Joint Account have always been the focus of the plaintiffs’ complaint.

40.  Not only did he fail to explain the inter vivos transactions, the 1^st defendant was actually reluctant to see these transactions being properly investigated.  Back in the days when the plaintiffs sought to appoint the APL, the 1^st defendant had attempted to mislead the court in order to prevent the appointment.  In his opposing affirmation, the 1^st defendant said “The deceased had time deposits of about $20 million.  In her lifetime the deposit accounts were closed upon maturity by the deceased and the money was spent by the deceased in her lifetime.  Some clues can be found as to where the money went in the brief statement set out in the enclosed Appendix.”  The Appendix contains a number of photographs showing the overseas trips that the Deceased went on during the relevant period.  Such account was obviously untrue as the records show the majority of the Deceased’s monies were actually transferred to the personal account of Jamis.  When confronted with that part of his affirmation, the 1^st defendant at first tried to blame his then lawyers, saying that he did not understand what they said.  He then admitted that he was passing the buck to his lawyers and agreed that the account given in his affirmation was unreasonable.  When it was put to him that the reason why he wanted to create a false impression that all the monies were spent by the Deceased during her lifetime was to mislead the court and prevent the appointment of APL, the 1^st defendant initially said he had nothing to say to that.  He only disagreed with that suggestion when the court questioned him what did he mean.

D2.  The 2^nd defendant

41.  First, the 2^nd defendant has clearly attempted in her testimony to downplay the Deceased’s mental problems.  She was first shown the patient consultation form dated 1 September 2014, which stated that “Daughter reported that patient is a [sic] anxious prone person all along, she noticed that patient has depressed symptom – crying, negative thinking, anxious mood, poor sleep, poor appetite for few months.  Request for psychiatric opinion”. When she was asked why the expression used in the notes was “all along” in respect of the Deceased’s anxiety, she said she did not know.

42.  As to the notes on 5 September 2014 at 11:35 am: “Claimed to worry about abandonment by son/daughter; Screamed with high pitch”, the 2^nd defendant further denied the contemporaneous record and said it was impossible for the Deceased to have such worry.  She also denied that mother would scream in hospital. 

43.  The 2^nd defendant’s evidence simply cannot withstand comparison with the contemporaneous medical records.

44.  Second, the 2^nd defendant’s evidence as to the reasons for not informing Madam Lo Kam Fung of the Deceased’s death is also revealing.  Towards the end of the cross-examination on Day 14 of the trial on 14 October 2024, the 2^nd defendant was asked by the court why she did not inform Madam Lo Kam Fung about the Deceased’s death.  She did not answer the question directly.  She initially said she did not think about it properly.  Later, she said she did not want to say anything to hurt the elderly.  Upon further questioning, she claimed that it was upon reflection her mistake not to invite Madam Lo Kam Fung to attend the ceremony marking the death of the Deceased.  It was pointed out to her that the question was never about inviting people to a ceremony like a wedding, but informing them of the death of the Deceased.  None of the explanations offered by the 2^nd defendant is sensible.  The 2^nd defendant was clearly suppressing news of the Deceased’s passing so as to avoid alerting the plaintiffs.

45.  Although the plaintiffs are interested in the outcome of this action and the court should therefore exercise caution in evaluating their evidence, they are basically unshaken on matters like the Deceased’s extremely frugal character, her habit of accumulating wealth, her dislike of making a will and their general respect and love for the Deceased.  They gave fairly consistent evidence in respect of what happened at the surprise visits in March 2012.  Their account as to what the Deceased told them about her experience at Tsim Sha Tsui was particularly significant.  It must be borne in mind that at that time, the plaintiffs had very little idea of the details regarding mother’s living with the 2^nd defendant, but they mentioned that in their evidence in an attempt to recall as accurately as possible what they could remember.

D3.  Mr Christopher Ng

46.  In the absence of credible testimony from the defendants, the evidence of Mr Christopher Ng becomes very important.  Indeed, in his Opening Submissions, the 1^st defendant submits that the court should not too readily upset a will prepared by experienced solicitors on the ground of mental incapacity.  The 1^st defendant further pointed out that in Hawes v Burgess [2013] WTLR 453, Mummery LJ stated:

“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 the expert has neither met nor medically examined the testatrix, and particularly in circumstances when the expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.” (Emphasis supplied)

47.  However, the above dicta in Hawes v Burgess cannot be taken too far.  Indeed, as pointed out by Kwan JA (as she then was)  in Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at §59:

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

48.  Further, Briggs J in In re Key, decd [2010] 1 WLR 2020 at §8 gave the following caution:

“… persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.”

49.  Unfortunately, in the present case and for the reasons set out below, I find Mr Christopher Ng to be an unreliable witness.

50.  Mr Ng is a solicitor qualified in 1987.  When he previously answered the specific enquiry made by the APL regarding the Will that “What steps, if any, have you taken to satisfy yourself that the Deceased had sufficient mental capacity to understand the contents of the Will and the effect of the Will?”, he simply stated that the Deceased “appeared to (him)  to be mentally sound and in good health when she signed the Will”.

51.  In his oral evidence, Mr Ng started by saying it was his usual practice to administer a test to see if an elderly client was mentally fit enough to make a will whenever he came without a medical certificate.  He would ask the following questions in his test: name, age, home address, did the intended testator know where he was, and why he was there seeing him.  Then he would name three types of fruits and ask this intended testator to repeat them immediately.  But the attendance note he kept, which he accepted to be the most reliable contemporaneous record of what happened during the attendance, mentioned nothing about the test and the test results.  He did not provide any reasons explaining why he made no mention of the test, which was his usual practice to administer, when he answered the APL’s enquiries.

52.  Moreover, as to her home address as part of the test, Mr Ng said the Deceased did answer him that she was living on the Ground Floor of No 40 Jockey Club Road (the address as stated in the Will).  When Mr Ng was asked if he would find it strange (or consider that there was something wrong with the mental capacity of the Deceased)  if the said address was not really her residential address, Mr Ng said the Deceased could have given him a fake address.  Such suggestion is remarkable and devoid of common sense.  In my view, this aspect of his evidence creates real doubt as to whether the “test” was really carried out as claimed by Mr Ng.

53.  According to Mr Ng, upon the terms of the Will being explained to her, the Deceased said she wanted to reconsider.  To allow her time to reconsider, Mr Ng stepped out of the room together with his clerk. The Deceased was left in the room with the 1^st defendant for about 15 to 20 minutes.  After that period passed, Mr Ng and his clerk were asked to return to the room.  But then the Deceased told Mr Ng that she still wanted to make a call to her relative.  For that purpose she used a mobile phone (which could only be the 1^st defendant’s mobile phone on the evidence).  Mr Ng said that he did not pay attention to the contents of the telephone conversation but he confirmed that a conversation did take place during that phone call.

54.  The aforesaid evidence of Mr Ng shows that on that day, the Deceased still had not made up her mind as to whether she should make a will or the terms thereof.  She needed to call her relative even after she was left with the 1^st defendant in the room for about 15 to 20 minutes.  That is totally contrary to the 1^st and 2^nd defendants’ evidence that it was the Deceased who wanted to make the Will giving her entire estate to the 1^st defendant and she was so determined to do so despite the 2^nd defendant’s protest.  Their evidence in this regard cannot be accepted.

55.  More importantly, Mr Ng also accepted that the Deceased could have been influenced at least twice, first during the time when she was left alone with the 1^st defendant and second over the telephone conversation, but then the only thing he did at that time was to remind the Deceased not to be influenced.  He also accepted that the best way of allowing the Deceased to consider the matter free from any interference was to leave her alone but he said it was the Deceased who wanted the 1^st defendant to be there in the room. 

56.  Mr Ng claimed that there was nothing more that he could have done.  That is not true.  He could have done more.  However, it seems that he prioritised having his job done over ensuring that the Deceased was free from any undue influence.  In these circumstances, his evidence that the Deceased was willing to sign the Will of her own free will must be considered with the greatest reservation.

57.  As to how the Will was explained to the Deceased on that day, Mr Ng’s evidence must also be received with caution.  According to him, he explained the Will to the Deceased once at the beginning, and again when she indicated to him that she would sign the Will.  The latter part was however not recorded in his attendance note.  Instead, the attendance note reads “informed me that she would sign the Will (already explained to her)”. Clearly, if Mr Ng had carried out the process of explanation twice, he would not put down “(already explained to her)”in his note.  His explanation that he did explain the Will to the Deceased again and but that was inadvertently omitted in his attendance note does not sit comfortably with the wording of the note itself.

E.  THE EXPERT EVIDENCE

58.  As the evidence of Mr Christopher Ng is not reliable, one should then turn to the evidence of the medical experts.  It is noted at the outset that both experts were in agreement that the Deceased had OCD at the material times.

E1.  Dr Li Cheuk Wing

59.  Dr Li gave his opinion in his report dated 5 May 2021 and the Joint Statement together with the 1^st defendant’s expert Dr Hung Bing Kei Gabriel on 28 May 2021.  Dr Li was of the opinion that the Deceased had mild neurocognitive disorder (“MND”)  due to vascular disease as early as the time when she saw Dr Ronald Chen in September 2011 and it continued at a gradual path of worsening, down to her demise in September 2014.  In §11 of his report, Dr Li explained the MND suffered by the Deceased as follows:

“11. … My overall opinion is that she likely had Mild neurocognitive disorder due to vascular disease. The essence of this disorder is the presence of modest cognitive impairment in one or more domains (such as memory, executive function, and perceptual motor)  without significant interference of everyday activities. This diagnosis can account for the observations made by the defendants’ witnesses that she seemed normal and could play mahjong because she was in familiar environments and her old skills were still intact. However, signs of cognitive impairment were noticeable, such as forgetfulness about recent events and increased temper outbursts. The latter may be a sign of impaired executive functioning. She would also have difficulty learning new skills and responding to complex situations.” (Emphasis underlined)

60.  He reached his diagnosis, based on the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSM-5), after taking into account the following: (a)  the symptoms recorded in the St James’ Settlement’s records; (b)  the clinical impression taken by Dr Ronald Chen and his diagnosis of “OCD, anxiety syndrome and cognitive impairment”; (c)  the result of the MMSE conducted by Dr Chen; (d)  the presence of short-term memory impairment on the part of the Deceased; and (e)  medical notes of North District Hospital, in particular the brain scan showing “periventricular deep white ischaemic change”, which is the result of long-standing narrowing of the small blood vessels in the brain and is often associated with dementia.

E2.  Dr Hung Bing Kei Gabriel

61.  Dr Hung took a rather different approach.  He devoted a significant portion of his report setting forth legal principles on mental capacity and testamentary capacity. 

62.  Dr Hung noted that there was nothing to show that the Deceased lacked testamentary capacity and reached the startling conclusion in §12.5 that “there is insufficient evidence to rebut the presumption of testamentary capacity”.

63.  In cross-examination, it was pointed out to Dr Hung that his opinion in §12.5 was based on a misunderstanding of the law, and that was accepted by Dr Hung.  I then asked what his opinion would be if it was the propounder of the Will who bore the burden of establishing testamentary capacity.  Dr Hung said he would change his opinion in §12.5 in the following way:

“Therefore, based on the available information, on the balance of probabilities, there is insufficient evidence to rebut the presumption of testamentary capacity to show the Deceased lacked testamentary capacity.”

64.  With respect, Dr Hung’s conclusion, after reformulation, still sits on the same erroneous foundation.  He continued to cast the burden on the party challenging the will to show lack of testamentary capacity.  His conclusion on testamentary capacity is thus of little use in advancing the 1^st defendant’s case.

65.  As regard the observation by Dr Hung that it would be difficult to extrapolate the mental condition of the Deceased in 2014 backward to the time of making the Will, I did ask him if the court accepted the diagnosis of Dr Li that the Deceased had already suffered from MND in 2011 and that it would be continuing until the CT scan in 2014, the condition would likely affect the Deceased when she made the will in 2013.  Dr Hung agreed.

E3.  Whose opinion should be preferred in general

66.  Dr Li took a very down-to-earth approach to tackle his task.  He was willing to consider the lay witnesses’ description of the character of the Deceased and the movement of her assets after she came under the care of the 1^st and the 2^nd defendants.  He paid close attention to the social milieu.  I agree that his opinion is soundly based both on facts and medical learning and his reasoning is cogent.  On the other hand, Dr Hung’s opinion is premised on his erroneous understanding of the presumption of testamentary capacity.  This approach undermines his credibility as an expert and the reliability of his opinion.  

67.  All in all, I prefer the expert opinion of Dr Li both as to his view on lack of testamentary capacity on the part of the Deceased and the Deceased’s predisposition to undue influence.

68.  Dr Li concluded that because of her MND, the Deceased was not able to understand the extent of her assets.  Furthermore, Dr Li opined that the Deceased was not able to comprehend and appreciate the claims of those who might expect to benefit from the Will, both those to be included and excluded, nor the impact of the distribution of the assets of her estate.

69.  With the above conclusions, it is not possible for the 1^st defendant to prove testamentary capacity on the part of the Deceased.

F.    CONCLUSION

70.  On Issue I, the preponderance of evidence is against the 1^st defendant, the propounder of the Will.  He cannot discharge the burden of proof of testamentary capacity on the part of the Deceased.  Her ability to understand the extent of her assets at the material times is in doubt.  There being no credible evidence showing that she appreciated the claims of the daughters to which she should give effect but she nevertheless named the 1^st defendant as the sole beneficiary.  I cannot be satisfied that the second and third requirements in Banks v Goodfellow (1869-70)  LR 5 QB 549 were established by the propounder.

71.  Further, the measures taken by Mr Christopher Ng fell far short of ensuring that the Deceased was free of any interference or influence exercised by the 1^st defendant being present in the room and the 2^nd defendant over the telephone.  This evidence cannot dispel any suspicion on the part of the court so as to be satisfied that the Deceased was fully informed and she gave genuine approval of the Will.

72.  I now turn to Issues II and III.  During the relevant period, practically all deposits, mortgage loan and proceeds of sale of landed properties (which could be disposed of by sale without alerting the 1^st or 3^rd plaintiffs)  went to benefit the family members of the 2^nd defendant exclusively.  No presumption of advancement applied in favour of Jamis and Ella.  To the contrary, the presumption of resulting trust applied in favour of the Deceased against Jamis and Ella for all the voluntary transfers, see: Snell’s Equity, 34^th ed, §§25-10 and 25-19.  In this connection, the court is entitled to draw adverse inference from the absence of Jamis and Ella giving evidence as to why the Deceased’s assets went to them or were applied for their benefit: see Li Sau Keung v Maxcredit Engineering Ltd & Anor[2004] 1 HKC 434 at §§28 & 29.  The court is entitled to infer that there is a lack of innocent explanation which the defendants can provide for the transfer or use of the Deceased’s assets.  In the circumstances, the 2^nd defendant clearly had the motive to prevent the plaintiffs from pursuing against her family members for the recovery of the Deceased’s assets, by procuring the Deceased to make the Will naming the 1^st defendant as the sole beneficiary.

73.  On the evidence, the Deceased was heavily dependent upon the care provided by the 1^st defendant in view of her OCD, cognitive impairment and being prone to outburst of anxiety.  She was vulnerable to any demand made by those caring for her.

74.  In the end, the Will did not have any real utility of benefiting the beneficiary therein and yet the 1^st defendant was willing to arrange it to be made, and his subsequent conduct which further deprived him of any remaining benefit under the Will (save and except the Phoenix Court Property, which was heavily mortgaged when the Deceased died), served to point to one direction and one direction only – to prevent the plaintiffs from pursuing against those benefiting from the inter vivos transactions for recovery of the Deceased’s assets and compensation.

75.  The 2^nd defendant was in as much the position of exercising control over the Deceased as the 1^st defendant. She had the strongest motive to do whatever it took to cause the Deceased to submit to her demands and she also had the assistance of her loyal companion, the 1^st defendant. 

76.  In the circumstances, the answers to Issues II and III are clearly “yes”.

77.  Accordingly, I make the following order in favour of the plaintiffs against the 1^st and 2^nd defendants:

(1)  an order that the court shall pronounce against the validity of the will of the Deceased dated 7 October 2013, ie the Will;

(2)  a declaration that the Will is invalid as its execution was procured by undue influence exercised on the Deceased by the 1^st and 2^nd defendants;

(3)  a declaration that the Will is invalid because of want of testamentary capacity on the part of the Deceased;

(4)  a declaration that the Will is invalid because of want of knowledge and approval on the part of the Deceased;

(5)  a declaration that the Deceased died intestate;

(6)  the counterclaim of the 1^st defendant be dismissed;

(7)  the 1^st and 2^nd defendants do jointly pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any); and

(8)  further to (7)  above, the plaintiffs be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

78.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

79.  Lastly, I express my gratitude to counsel on all sides for their helpful assistance in this matter.