CHEUNG WAI LAN v. KWOK CHUNG CHEE

HCAP 9/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PROBATE JURISDICTION

ACTION NO 9 OF 2009

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JUDGMENT

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Introduction

1.  The plaintiff, Cheung Wai Lan (“Lan”), is one of the ten grandchildren of the deceased, Mr Kwok Shi (“the Deceased”), who passed away on 27 November 2008. Lan’s claim is for proof in solemn form of the will dated 19 November 2008 (“the 2008 Will”) of the Deceased. Under the 2008 Will, the bulk of the estate of the Deceased is bequeathed to Lan. The defendant, Kwok Chun Chee (“Chee”), the eldest son of the Deceased and elder brother of Lan’s mother, namely, Kwok Man Yi (“Man Yi”), opposes the claim of Lan on the ground that the Deceased lacked the testamentary capacity at the relevant time and that the Deceased had neither the requisite knowledge nor the approval of the 2008 Will.

2.  The Deceased executed the 2008 Will when he lay on his sickbed in Princess Margaret Hospital (“PMH”), which he could not leave until his demise eight days later. A practising solicitor, Ms Leung Suk Chong (“Ms Leung”) read over the contents of the 2008 Will to the Deceased and witnessed his execution of the 2008 Will after the treating doctor of the Deceased of PMH, Dr Ho Chi Pang (“Dr Ho”), examined him to confirm the soundness of his mind.

3.  The Deceased made two wills prior to the 2008 Will, one in 2002 and one in 2004. Chee’s entitlement in the estate of the Deceased has gone from all to nothing. Being understandably sceptical and frustrated, Chee now casts doubt on the testamentary capacity of the Deceased when the Deceased made the 2008 Will in his absence and necessarily he raises queries about the Deceased’s purported knowledge and approval of the 2008 Will. These are the key issues in this action. There is a plea of undue influence vaguely made in the Defence prepared by Chee in person. Mr Miu, counsel for Chee, at the outset of the trial expressly indicates that the defence abandons this contention.

4.  In this Judgment, I would first set out the undisputed background facts. Then, I shall examine the legal principles germane to the central issues and in light of such principles, I shall proceed to analyse the rival contentions and resolve conflicting evidence in support thereof.

Background Facts

5.  To understand the rival contentions of the parties, a summary of the non-controversial background facts is provided as follows.

6.  The Deceased was born in or about 1927 and was 81 years of age when he passed away. His wife died in March 2002 (“the Mother”) and both of them were indigenous villagers of Ma Wan, New Territories. In or about 1966, by a deed dated 4 October 1966, the Deceased inherited a piece of land in Ma Wan with lot number 147 (“Lot 147”) from his grandfather. The Mother also acquired a village house at Ma Wan at Lot 302 (“the Mother’s House”). They had altogether four children born in wedlock. Apart from Chee, in descending order of seniority, they were Man Yi, Kwok Man Wah (“Wah”) and Kwok Chung Chiu (“Chiu”).

7.  The Deceased only received two years of informal education. He got married in the early sixties. After the birth of his four children, the Deceased left his young family and worked in the UK on his own in the late sixties. He mostly worked in Chinese takeaway shops. In or about 1975, his family’s application for emigration to the UK of his family was approved. The Deceased reunited with his wife and all his children in England in or about 1975.

8.  The Deceased and his family except Chee, as explained below, spent most of their time in the UK. The Deceased worked very hard in such Chinese takeaway shops and all his family members helped out in his work. Wealth accumulated as a result and the Deceased opened his own takeaway shop in or about 1975 in Plaistow, London (“the Plaistow Property”) with the financial assistance of his uncle. The Deceased managed to acquire the shop premises in the end and the Mother became the registered owner thereof. After his retirement, the Deceased leased the Plaistow Property to other takeaway business operators and earned rental income. Eventually, the Plaistow Property was transferred to Man Yi in 2000.

9.  The parties have different versions of events about when the Deceased actually ceased working and returned to Hong Kong for good. It is however not in dispute that since or about May 2005, the Deceased started residing in the same 3-storey village house with Lan and shortly afterwards Man Yi joined them. The village house is located at 257 Ma Wan Main Street, Village Central, Ma Wan, Tsuen Wan, New Territories (“the House”).

10.  The Deceased acquired the House on account of a house exchange scheme (“the Scheme”) devised by Sun Hung Kai Properties Group  (“SHK”), which hardly needs introduction. In or about 1990, when the construction of the new international airport on Lantau Island was mooted, the Group decided to carry out a big construction project, later known as Park Island, in Ma Wan. Under the Scheme, SHK asked indigenous villagers in Ma Wan to surrender their village houses in exchange for new 3-storey village houses to be constructed by SHK to facilitate their project.

11.  By reason of their subscription of the Scheme, the Mother surrendered her Lot 302 and the Deceased surrendered Lot 147. The House was made available to the Deceased only in March 2005.  

12.  By way of a brief introduction of the family members of the Deceased, Chee was the first one to travel to the UK and started his education (O-Levels) in 1974. The Deceased then was a sailor. Chee later went to Queen Mary College of London University and earned his Bachelor of Science degree in Electronic Engineering in or about 1980. He is the only one in the family who has received university education. He worked in the UK for a few years after graduation and returned to Hong Kong in or about 1985 for good. He first settled in the Mother’s House.

13.  Chee worked as an electronic engineer in Hong Kong in the eighties. In the early nineties, he started his business in electronic communication. He has all along been leading a comfortable life with his wife and two sons in Hong Kong. In March 2004, Chee suffered tonsil cancer and underwent intensive treatments. As a result of the cancer, his physical condition was seriously impaired and heavy weight loss ensued. He made a full recovery eventually but he looked very differently, apparent from the old photos produced by him.

14.  Chee was once the village representative of Ma Wan. According to Chee, most indigenous villagers in Ma Wan know him.

15.  Man Yi is a divorcee. She got married in 1978 and has three children. Lan is her son and she has two other daughters. Lan’s elder sister is Cheung Wan Yin (“Yin”), another beneficiary under the 2008 Will, born in 1981. His younger sister is Cheung Wan Min (“Min”) born in 1985. The unchallenged evidence is that her ex-husband fleed the country in the early eighties due to some legal problems with the UK authorities. Subsequently, they divorced in 2003. Until 2005, Man Yi mostly resided in the UK and thereafter she settled in Hong Kong.

16.  In or about 1981, Yi started her own takeaway business under the trade name of “Sun Wong Kee” in East London. Her family condition was not satisfactory. She needed social security assistance. She and her family resided in a council house owned by the British government.

17.  Wah is married and has all along been residing in the UK with her family. She has two daughters. She has been running a restaurant with Chiu in London. Apparently she is very independent and is quite well-off. Her husband is a pharmacist. Wah stays away from the present dispute and takes no part.

18.  Chiu is married and has settled in the UK since the seventies. He has a son and a daughter, both residing in the UK. Chiu and Wah helped Man Yi to take care of Yin and Lan when they were attending secondary school in South West London. They stayed in their homes in the course of their studies.

19.  Chiu has been a business partner with Wah and they have been operating a successful restaurant business in London. As shown by his testimony in support of the defence, he is appreciative of Chee’s contribution to the family and in particular, his taking care of the Deceased and the Mother.  

(Previous) Depositions of Assets of the Deceased and the Mother

20.  The Mother made a will dated 29 March 1994 in England (“The Mother’s Will”). Under the Mother’s Will, Man Yi and Chiu were appointed trustees of her estate, which mainly consisted of Lot 302. The Mother bequeathed the ground floor and first floor of Mother’s House to Chiu and the second floor to Man Yi. Man Yi and Chiu were the only beneficiaries under the Mother’s Will.

21.  The Mother passed away on 25 March 2002 and her interest in the Mother’s House was disposed of pursuant to the Mother’s Will. Since the Mother also subscribed to the Scheme, in 2003, a new village house was assigned to Man Yi and Chiu. They executed a Power of Attorney dated 9 July 2003 to authorise Chee to handle the conveyance matters in respect of the new village house since both of them resided in the UK. They are now the registered owners of the said new village house in the same shares as in the old one in Lot 302.

22.  Further, as evidenced by an official record produced by the Land Registry Office, UK, the Plaistow Property was transferred to the three children of Man Yi, namely, Min, Lan and Yin on 2 August 2000 (“the 2000 Transfer”).

23.  On 10 September 2002, the Deceased made a will (“the 2002 Will”) witnessed by a solicitor of Messrs. Rowdget W. Young & Co. (“RYC”). Chee was familiar with the staff of RYC. Under the 2002 Will, the Deceased appointed Chee to be the executor of his will and thereby devised and bequeathed all his property to Chee. In other words, Chee was the sole beneficiary under the 2002 Will.

24.  On 3 July 2004, the Deceased instructed RYC to prepare another will (“the 2004 Will”). The Deceased executed the 2004 Will on the same date. Under this document, Chee again was appointed the sole executor and was empowered to sell the property of the Deceased. Any proceeds were to be divided into four equal shares to be distributed among his four children equally.

25.  On 30 June 2005, as shown in the land search records, the Deceased executed a deed of gift in favour of Man Yi. By the deed of gift, the Deceased assigned the 2^nd floor of the House together with the roof thereof to Man Yi (“the 2005 Gift”). 

26.  In or about October 2005, the Deceased’s family consisting of Ma Wan indigenous villagers was entitled to apply to construct a house on a government land in Ma Wan by way of a private treaty grant upon payment of premium (“the 2005 Application”). Due to insufficient space, each eligible family could only nominate one male member to apply and the applications would be decided by a draw. Chee was nominated with the consent of the Deceased and Chiu to make the application and in the end the application was approved. Upon payment of the premium in the sum of HK$109,650 in August 2010, Chee was entitled to construct a village house (otherwise known as New Territories Exempted House) at Lot 720, Ma Wan at his own cost.

27.  Unlike the 2002 Will and the 2004 Will, the 2008 Will is written in the Chinese language. It expressly revokes all the previous wills and dispositions and it contains six paragraphs only. First, Lan was appointed the executor of the 2008 Will. Second, the ground floor and the 1^st floor of the House were to be bequeathed to Lan for his residence or generation of rental income. Upon Lan’s death, his children would inherit the House from Lan and enjoy the use of the same.

28.  Third, the balance of the joint account of Lan and the Deceased with Shanghai Commercial Bank (Hong Kong) (“the Joint Account”) should be totally bequeathed to Lan.

29.  Fourth, as regards the balance in the account of the Deceased with Hong Kong and Shanghai Bank registered under his sole name (“the Account”), after deduction of his funeral expenses, Yin should be solely entitled to the same.

30.  Fifth, as eregards the Deceased’s residual estate and in case of any other property, Lan would be authorised to realise such property and apply the proceeds thereof to discharge of the liability of the Deceased, if any and all the administration expenses to be incurred. The entire balance of the residual estate should be bequeathed to Lan.

31.  Lastly, the Deceased confirmed that Hong Kong is his place of domicile and the 2008 Will shall be administered in accordance with Hong Kong law.

32.  These were the dispositions of the properties on the part of the Deceased and the Mother in their respective lifetime. The defence relies on these matters to show that the provisions in the 2008 Will are irrational and hence the testamentary capacity of the Deceased is in doubt.

33.  According to Form No.N4.1 dated 12 January 2009 signed by Lan, which is a schedule of assets of the Deceased, as at the date of the death, the Deceased had the following assets in Hong Kong:

1. Credit balance of HK$77,395.42 standing in the Joint Account;

2. Credit balance of HK$2,334.64 standing in the Account; and

3. Ground floor and the first floor of the House.

Relevant legal principles

34.  Both Mr Chong and Ms Yip, counsel for Lan and Mr Miu have helpfully cited to me a number of old English authorities on testamentary capacity and knowledge and approval. Most of them relate to the issue of burden of proof and presumptions. Moreover, I derive particular assistance from some recent local decisions such as Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, Chiu Man Fu and Ors v Chiu Chung Kwan Ying, unreported, HCAP9/2005, 30.1.2012 and Tao Shen Jong v Yung Sau Lan Shirley, unreported, 21.3.2014. 

35.  The starting point should be the freedom of testamentary disposition. Moore-Bick LJ in Perrins v Holland [2011] Ch. 270 reiterated its importance at §39:

“It has been said on many occasions that the English law favours freedom of testamentary disposition. As Cockburn C.J. said in Banks v Goodfellow (1870) LR 5 QB 549, 560:-

“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property than of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

34. Now as Lan seeks to propound the 2008 Will, he bears the persuasive burden of proving on a balance of probabilities that:

(a) there was due execution of the will;

(b) the testator was of testamentary capacity; and

(c) the testator knew and approved of the contents of the will.

See: Nina Kung v Wong Din Shin, supra, §173 per Ribeiro PJ citing Barry v Butlin (1838) 2 Moo PC 480; Re Harmes Estate [1946] 3 DLR 497 (PC).

35. In the present case, there is no dispute as to the authenticity of the three signatures appended to the 2008 Will (belonging to the Deceased and the two attesting witnesses). Mr Chong disavows any reliance on the presumption of due execution in respect of Chinese wills under the Wills Ordinance, Cap.30 given the availability of actual evidence of due execution. It should be noted that the presumption of due execution provided by the current section 5(2)[1] which is applicable to the 2008 Will actually makes no distinction between Chinese wills and non-Chinese wills.

36.  The dispute lies in the latter two requirements. Whilst the legal burden of proof rests on Lan, the dictum of Ribeiro PJ in Nina Kung v Wong Din Shin, §176 is apposite:

“If someone wishes to dispute the validity of a will on the grounds that there is want of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.”

37.  On the issue of testamentary capacity, as referred to me by Mr Miu, the classic definition was given by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 which is as follows:

“it is obvious … that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that testator shall understand the nature of the acts 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 effects; and with a view to the latter object, that no disorder of the mind shall poison his affections, perverts his sense of rights, 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 have been sound, would not have been made.”

38.  Mr Chong refers to me the following passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20^th ed., 2013), where the dictum of Cresswell J in Sutton v Sadler (1857) 3 CB (N.S.) 87 at p.99 is cited:

39.  “… yet if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb this presumption.”

40.  Mr Chong stresses that the rationality required of by the presumption is internal in nature. So long as there is no internal inconsistency within the will, the rebuttable presumption of testamentary competency is triggered. He relies on Schrader v Schrader [2013] EWHC 466 (Ch).  

41.  As pointed out by Poon J in Chiu Man Fu, supra, at §133, it is not necessary for a testator to be in perfect health in order to possess the requisite testamentary capacity[2].

Mr Miu has no issue with this proposition. Indeed he refers me to the following extracts from the summing up of Sir J Hannen in Burdett and Anor v Thompson cited in the footnote in Boughton and Marston v Knight (1873) L.R. 3 P & D 64:

“The question of unsoundness of mind is one of degree, and it is impossible to lay down any abstract proposition which will guide you in determining it. Probably the mind of no person can be said to be perfectly sound, just as the body of no person can be said to be perfectly sound… What I have said, and I repeat it, is that if you are at liberty to draw distinctions between various degrees of soundness of mind, then whatever is the highest degree of soundness is required to make a will. … for it involves reflection upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator’s bounty, and the power of considering these several claims, and of determining in what proportions the property shall be divided amongst the claimants; and, therefore, whatever degrees there may be of soundness of mind, the highest degree must be required fro making a will.”

42.   In Tao Shen Jong (§§116-117), L Chan J was referred to the following two authorities, which are of relevance to the present case. First, in Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ said this at §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, and experienced lawyer has been instructed and has formed an opinion from a meeting or meetings that’s 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.”

43. In Kenward v Adams (1975) The Times 29 November 1975, however, Templeman J (as he then was) had this to say:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.

There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator and, if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator.

There are not counsels of perfection.  If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused.”  (emphasis added).

44. Non-compliance with the golden rule does not necessarily invalidate the will: Buckenham v Dickinson [2000] W.T.L.R. 1083 at p.1091G per His Honour Judge Cooke. See also Williams, Mortimer and Sunnucks on Executors, Administrators and Probate §13-04 (20^th ed., 2013).

45. Going back to the issue of rationality, which turns out to be a major ground of the defence, Poon J in Chiu Man Fu, supra, (§§71-76) did a thorough review of the relevant authorities and certain propositions can be distilled from those passages. First, testamentary autonomy and testamentary capacity remain to be of paramount importance. In assessing one’s testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. One can still be mentally capable of making a will when he is moved by capricious, frivolous, mean or even bad motives. A testator may disinherit either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his testamentary dispositions however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. In short, the court is not required to carry out an objective assessment of the fairness and/or reasonableness of his testamentary dispositions.

46.  That said, in an extreme case, the irrationality of the testator’s testamentary disposition may well drive the court to a finding of testamentary incapacity. Sharp v Adam [2006] EWCA Civ 449 is a case in point.

47.  There, the sole beneficiaries of the testator’s last will were his two loyal servants whereas under his previous will, his two daughters were the sole beneficiaries. As a result of the last will, the two daughters were completely disinherited. The English Court of Appeal upheld the trial judge’s finding that the irrationality of the will could evidence that the testator’s judgment was impaired. May LJ made it clear that the court should look for a justification for the change in the will or inquire why the testator disinherited his daughters where there is a possibility that it is due to diseases of the mind, provided that the inquiry is directed to the testator’s soundness of mind, and not to general questions of perceived morality. In that case, there was medical evidence to the effect that the profound cognitive abnormalities of the testator were likely to have affected his memory and executive functions.

48.   Poon J after reviewing Sharp v Adam, had this to say (§§78-79),

“The court must look for an explanation for the dramatic change in his testamentary wishes such as complete disinheritance of his children. But when searching for the answer, its focus remains firmly on the question whether the testator had the capacity to make the will.

It is important to bear firmly in mind the caution sounded by the Court of Appeal in Sharp v Adam when dealing with any perceived irrationality of a contested will. Otherwise one may be easily led astray by the drift of the evidence propelled by the underlying current of family rifts and sentiment and becomes lost at the sea of allegations and debates about morality and irrationality without a rudder.”  

49. I too find the caution timely and useful when dealing with the factual issues raised by the parties.

50.  Now I turn to the issue of knowledge and approval. The proof of due execution and testamentary capacity generally means that knowledge and approval would be rebuttably presumed without the need to adduce affirmative evidence thereof: Nina Kung v Wong Din Shin, supra, by Ribeiro PJ at §206.

51.  The defence prays in aids on the so-called second rule of Barry v Butlin (1838) 2 Moo PC 480 (“the Second Rule”), which was set out in Nina Kung v Wong Din Shin, supra, by Ribeiro PJ at §204 as follows:

“The second is, that is a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

52.  In Nina Kung v Wong Din Shin, supra, the issue was whether the testator himself executed the contested will and the issue of knowledge and approval did not arise at all (§174). However, Ribeiro PJ embarked on a review of the relevant English authorities on this issue since his Lordship found that certain authorities on the requirement of knowledge and approval were misapplied in the courts below. The review is indeed instructive and the following propositions are apposite.

53.  First, Ribeiro PJ made it clear that the Second Rule is no authority for a general requirement that the proponent of a will to “dispel all suspicious circumstances surrounding the will”. Ribeiro PJ identified that the misconception arose from a misunderstanding of the passage in the judgment of Lindley LJ In Tyrrell v Painton & Anor. [1894] P151:

“The rule in Barry v Butlin (1838) 2 Moo PC 480, …, is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case me for proving the will.”

54.  Ribeiro PJ (§216) explained that what was decided in Tyrrell v Painton & Anor. supra, is that where the evidence existed to raise the issue as to whether the testatrix knew and approved the will’s contents, the person propounding the will had to adduce affirmative evidence of such knowledge and approval sufficient to “remove the suspicion” and therefore to discharge his persuasive burden of proving the will.

55.  Another significance of Tyrrell v Painton & Anor., supra, as pointed out by Ribeiro PJ (at §218) is that it extends the Second Rule to the extent of embracing the situation where the person who had drawn up the will was someone other than the person who took under it, but where the two were closely related or associated with each other.

56.  Ribeiro PJ further made it clear that the Tyrrell v Painton & Anor. supra, is not authority for any broader rule, far less authority for requiring the person propounding the will to dispel any circumstances which might be said to be suspicious in relation to the will propounded.

57.  Ribeiro PJ also referred to Fuller v Strum [2002] 1 WLR 1097 and considered the English Court of Appeal’s analysis of the Second Rule. The additional requirement of proof of “the righteousness of the transaction” considered in subsequent cases involving the Second Rule was explained by Peter Gibson LJ in Fuller v Strum:

“But “the righteousness of the transaction” is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480 at p.483 per Parke B. (at p.1107).”

58.   Lastly, the simple point made by Longmore LJ in Fuller v Strum, supra, is worthy of note:

“The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more.”

Plaintiff’s case and evidence

59.   By way of a general introduction, the case of the plaintiff is that the Deceased was of a perfect mental capacity at the time when the 2008 Will was executed. Lan and Man Yi resided with the Deceased at the House before his final admission to PMH in August 2008. Dr Ho treated the Deceased in PMH after his admission to PMH and examined him shortly before the execution of the 2008 Will. The Deceased executed the 2008 Will in the presence of and attested by both Ms Leung and Ms Lai Ho Yee Betty (“Betty”). None of them found anything untoward about the mind of the Deceased. Dr Chung Hung Kin (“Dr Chung”), a specialist in Psychiatry, gave his expert opinion on the testamentary capacity of the Deceased on the basis of the evidence of Ms Leung and Dr Ho.

60.   Lan and Man Yi gave another dimension of the mentality of the Deceased in an attempt to justify his dispositions in the 2008 Will. Lan went to great lengths to highlight his affinity (and those of his family) to the Deceased in particular after he settled down in Hong Kong in 2005 and Man Yi (and mostly through Lan in his witness statements) described the uneasy relationship between the Deceased and Chee from start to finish. Below is a summary of the evidence adduced on behalf of Lan.

Lan

61.  Lan was born and bred in the UK. He was born in the year of 1982. He got a Bachelor of Arts degree in Digital Animation from a university in England. Not long after his graduation, he came to Hong Kong in January 2005 on the same flight as the Deceased and intended to look for a job here. He was asked by his mother to take care of the Deceased in Hong Kong, knowing that he was diagnosed with terminal illness. He was told that the kidney of the Deceased had only 20% efficiency and he could not live long.

62.   To the best of his memory, the Deceased only retired in 2000 and returned to Hong Kong with the Mother in 2001 after she had been diagnosed with intestinal cancer. Prior to his retirement, the Deceased had all along assisted Man Yi in the operation of her takeaway business in the UK.

63. In January 2005, Lan first resided in the Mother’s House with the Deceased. When the House was made available, both the Deceased and he moved to the House. He himself occupied the first floor of the House whereas the Deceased stayed on the second floor. Later when Man Yi returned, Man Yi resided on the second floor with the Deceased.

64.  When he resided with the Deceased, despite his full time jobs far away from home and his having a relationship, he claimed to have managed to take good care of the Deceased with the help of a domestic helper. He gave the Deceased insulin injections thrice a day. He took him to the hospital whenever the Deceased required medical care. He would also give pocket money to the Deceased out of his income.

65.   Lan apparently got along with the Deceased quite well. In the daytime when Lan left home for work, the Deceased was all by himself and sometimes he went to the ground floor of the Mother’s House, which had been converted into a grocery store, to chat with other villagers. After work, Lan invariably had dinner with the Deceased. Friendship fostered between the two of them.   

66.   A remarkable piece of evidence showing their close relationship is that the Deceased and Lan opened the Joint Account on or about 25 May 2005 (This is the date appearing on the front page of the bank book relating to the Joint Account). From the bank book of the Joint Account, it can be seen that the first deposit was made on that day in the sum of HK$157,968.41, which represented the bulk of the savings of the Deceased at that time. The said sum was transferred from a bank account of the Deceased in his sole name.

67.   It did not take long for Lan to find out that the Deceased did not have a good relationship with Chee and his family. He rarely saw Chee paying any visit to the Deceased in Ma Wan to start with. He was not aware that Chee had telephoned the Deceased for a chat too.

68.  The Deceased actually told Lan the reason why the Deceased had a strong dislike for Chee’s wife. In early 2004, Chee was diagnosed with cancer. The Deceased was very concerned and so he returned to Hong Kong with Yi to visit Chee. During this visit which lasted for about three months, the Deceased stayed at Chee’s home with his family. The Deceased did not get along well with Chee’s wife and found her care for Chee to be wanting. The Deceased even told Lan that he did not want Chee’s wife to have any share of his estate.

69.    Another bad experience of the Deceased attributable to the subsequent rift between the Deceased and Chee arose from the 2004 Will. The Deceased again engaged RYC to prepare the 2004 Will for him and he asked for the company of Man Yi when he executed the same. The 2004 Will was supposed to be a confidential matter. The Deceased did not tell Chee that he intended to make the 2004 Will to revoke the 2002 Will though Chee remained to be one of the executors of the 2004 Will.

70.    However, Chee soon acquired knowledge of the existence of the 2004 Will and its contents. The Deceased suspected that the staff of RYC had told Chee about the 2004 Will. Chee was very unhappy about the change of the dispositions in the 2004 Will. He no longer was the sole beneficiary of the estate of the Deceased and his entitlement was reduced by three quarters.

71.   After the making of the 2004 Will, Chee every now and then persuaded the Deceased to change his estate plan. Sometimes, Chee even brought up this matter in the presence of other distant family members in a bid to heap pressure on the Deceased to change his mind.

72.   The Deceased was however determined and unmoved. He was very much upset by Chee’s disclosure of this very private personal matter to others. Frequent heated arguments between the Deceased and Chee resulted.

73. The last straw appeared to be the visit paid by Chee and the elder sister of the Deceased (“the Aunt”) to the Deceased at the Mother’s House in early 2005 (“the Visit”). Lan was present and he heard them persuading the Deceased to change his estate plan. The Aunt even asked for a share of the estate of the Deceased. The Deceased refused her flatly.

74.Chee told the Deceased that Man Yi had already inherited a lot from the Mother and she should not take any further benefit from his estate. The Deceased refused, for Chee already led a very comfortable life with his own wealth and should not covet his estate. The Deceased told Chee bluntly that he should forget about his estate and should pay more attention to his own health.

75. Later, the Deceased explained to Lan why he made those dispositions in the 2004 Will. He told Lan that he did not want any arguments among his children about his estate and so equal distribution appeared to be the best solution to him.

76.  The relationship between the Deceased and Chee had broken down beyond repair ever since the Visit.  Even during traditional Chinese festivals such as the Lunar New Year, Chee did not visit the Deceased. Lan did not see Chee celebrate the birthday of the Deceased. The Deceased was not even on speaking terms with Chee at the end. 

77. Lan added that since his stay with the Deceased at the House, Chee and his family never paid any visit to the Deceased. Nor did Wah. Not unsurprisingly, Wah’s two daughters alone paid a visit to the Deceased at the House once in 2007. They were not accompanied by their parents. As regards Chiu, he and his family paid only one visit to the Deceased in or about August 2006 and they stayed on the ground floor of the House.

78.  The Deceased at times complained to Lan that he was neglected by his children except Man Yi. The Deceased told Lan that Chee was not really genuine to him and he just coveted his estate. The Deceased complained that there was no reason why Chee did not bring his children with him in their meetings if they were meant to be family gatherings.

79.   On the other hand, the Deceased expressed to Lan his concern about his welfare. Lan was then just a young fresh graduate with little local connection and experience in Hong Kong,. At that time, Lan’s monthly income albeit stable was very modest. The Deceased also indicated to Lan his reservation about Man Yi’s ability in handling her own financial matters. As admitted by Man Yi in her oral testimony, she was a habitual gambler. The Deceased told Lan that he wanted him to have a property in Hong Kong and that he did not need to worry about housing matters in Hong Kong.            

80.   Lan was indeed very close to the Deceased. Since the admission to PMH on 13 November 2008, Lan visited the Deceased every day, sometimes more than once, during lunch hours and/or after work. He knew that the Deceased wanted to make a will but did not know the Deceased’s intended dispositions. Lan learnt about his entitlements under the 2008 Will only after the death of the Deceased.

81.   Under cross-examination, Lan gave more details about the last admission of the Deceased to PMH in November 2008. He said that Yin too returned to Hong Kong to pay visits to the Deceased and was present (outside the ward) on 19 November 2008 when the Will was executed. As far as he knew, Chee did not visit the Deceased every day whereas Chiu did so throughout his brief stay shortly before the death of the Deceased in Hong Kong. 

Man Yi     

82.  The evidence appearing in the witness statement of Lan relating to the alleged uneasy relationship between the Deceased and Chee in the eighties could not be within the personal knowledge of Lan and was actually originated from Man Yi. I do not however find such evidence to be of relevance in light of the 2002 Will, under which Chee was the sole executor and beneficiary of the estate of the Deceased.

83. Her witness statement consisting of eight short paragraphs contains very brief evidence in relation to the preparation and execution of the 2008 Will. She only gave more details in the witness box.

84. First, she explained that in early 2005, the Deceased was diagnosed with cancer in London and he was expected to live for no more than six months. The Deceased then asked Man Yi to return to Hong Kong with him so that she could take care of him in the final stage of his life. She agreed and the quid pro quo was that the Deceased should transfer to her the title to the second floor of the House. The Deceased agreed and hence the 2005 Gift.

85.   Man Yi first arranged Lan, who just graduated from his university, to accompany the Deceased to return to Hong Kong from London in early 2005. After tying up the loose ends in London, she also returned to Hong Kong about two weeks later and stayed with the Deceased and Lan. Man Yi insisted that the Deceased only resettled in Hong Kong in 2005 and not 1985 as alleged by Chee. She maintained that the Deceased had all along resided in London in his own council house and the Deceased went to her shop to assist her on a daily basis until 2005, save for a few months when he stayed in Hong Kong with the Mother when the Mother was very ill before her death in 2003. Throughout the years, the Deceased would visit Hong Kong annually or once in two years and each time he stayed for a month.

86.   Form 2005 to 2008, Man Yi alone would return to London for a week or so each year to see her family (Yin and Min remained there). Other than these trips, she stayed with the Deceased on the second floor of the House.

87.  During those few years, the Deceased had to be hospitalised on a few occasions. On 13 November 2008, the Deceased needed medical treatment for his renal problems and hence he was admitted to PMH with the assistance of Man Yi. After his medical examination on the following day, on or about 15 November 2008, the treating doctor reported to Man Yi that the Deceased was expected to live for no more than two weeks. Man Yi did not tell the Deceased about this. She just told the Deceased that his present hospitalisation in PMH should be no different from his past admissions and he would be discharged soon.

88.   Yet, the Deceased told Man Yi that he felt that his physical condition was very different from his previous experience. The Deceased asked Man Yi to look for a lawyer as he wanted to make a will. According to the oral testimony of Man Yi, the Deceased merely told Man Yi who would be entitled to his estate and he did not tell her the exact manner of distribution of his assets. But when she was reminded that her witness statement gave a different account, she changed to say that the Deceased actually told her who would get what in his initial instructions.

89.  Man Yi then called a friend named Phobe Cheung (“PC”) in the evening. PC was a secretary in a law firm. Man Yi asked PC to find a lawyer for her to prepare a will for the Deceased. Man Yi also told PC briefly about the testamentary intentions of the Deceased. She asked PC to liaise with Lan concerning the will matter. Lan was relatively free as he was then unemployed. Man Yi just concentrated on taking care of the Deceased. Man Yi did not contact Betty herself.

90.  Through her arrangement, Ms Leung and Dr Ho met the Deceased in his ward in the morning of 19 November 2008. At around 10:30 a.m., Lan and Man Yi were at the bedside of the Deceased. Dr Ho left already and Ms Leung was there. Ms Leung asked the Deceased whether he could recognise Man Yi and Lan. The Deceased was able to do so. Then Ms Leung asked them to leave the ward for a while.

91.   After about half an hour, Ms Leung asked them to return to the ward. Apparently the 2008 Will was executed.

Ms Leung

92.  Ms Leung is presently a partner of Messrs. Annie Leung & Co.. She has been a practising solicitor in Hong Kong since October 1997. In November 2008, she was a partner of Messrs. Shea & Co..

93.  Ms Leung received the instruction to prepare a will for the Deceased through Betty. She instructed Betty to confirm the admission of the Deceased in PMH and fix a time for the Deceased to execute the Will. Ms Leung also asked Betty to make sure that a medical officer would be present to confirm the capacity of the Deceased.

94.  On 19 November 2008, as scheduled, Ms Leung and Betty went to the ward of the Deceased at around 10:00 p.m. with the draft will prepared by Betty. They were received by Lan and Yi outside the ward. After waiting for a while for the doctors and nurses to finish their work, they entered the ward and saw the Deceased lying on the bed with a mask.

95.   Ms Leung first identified herself to the Deceased and had a brief conversation with him so as to confirm that he was of sound mind and communicative. The Deceased was able to tell her clearly (1) his full name, (2) the names of his grandson (Lan) and daughter (Man Yi) standing at the bedside and their relationships with him, (3) the name of the hospital where he presently was, (4) that he had asked her daughter to find a lawyer to make a will for him and (5) that he wanted to make his last will there and then. The Deceased was able to tell Ms Leung the details of his properties precisely without any prompting. Ms Leung was satisfied that he had the mental capacity to make a will.

96.   Ms Leung then asked the Deceased what he wanted to do by his last will and the Deceased told her all his intended dispositions. Ms Leung checked them against the draft will and was convinced that the draft will was reflective of the true testamentary intention of the Deceased.

97.  Not knowing how many children and grandchildren the Deceased had, Ms Leung asked the Deceased whether he had any other properties or other beneficiaries that he would want to include in his last will and the Deceased replied in the negative.   

98.   Given the Deceased’s direct instructions, Ms Leung accepted the accuracy of the draft will and so she read to the Deceased the draft will sentence by sentence. Then the Deceased took a few minutes to read the draft will himself. The Deceased confirmed to Ms Leung that the contents of the draft will were correct and in accordance with his wish. He confirmed that he wanted his last will to be in terms of the draft will. Ms Leung did not find it necessary to make any amendments to the draft will. Nor did Ms Leung have any difficulties in communicating with the Deceased despite his hearing problem and his mask. The ward was very quiet as it was not within the normal visiting hours.

99.  Dr Ho arrived a short while later and Ms Leung heard their conversation. She also saw Dr Ho carry out a routine medical check on the Deceased. Dr Ho told Ms Leung that he was satisfied that the Deceased had sufficient mental capacity to make a will and so she could proceed with her work. Dr Ho also told Ms Leung that he would prepare a certificate to be collected by the family members of the Deceased. Under the circumstances, Ms Leung had no doubt about the testamentary capacity of the Deceased.

100.  Then, Ms Leung read over the contents of the draft will to the Deceased again. Ms Leung further passed the draft will to the Deceased and let him read the draft will. After reading the draft will for about two minutes, the Deceased signed the draft will and that became the 2008 Will. Ms Leung and Betty appended their signatures to the 2008 Will immediately afterwards near the bedside. After the execution of the 2008 Will, Ms Leung told the Deceased that he could always change his testamentary dispositions by way of another will.  

101.  Ms Leung did not know that the Deceased had two previous wills. Nor could she remember whether the Deceased wore his spectacles. She saw the Deceased read the 2008 Will and he did not appear to have any difficulties. She could not tell whether the Deceased had his hearing aid with him. She did not notice any hearing problems of the Deceased. The mask that the Deceased wore at that time did not hinder their conversation, either.

102.   A few days later, Ms Leung in her office received a certificate issued by Dr Ho from Lan.     

Betty

103.  Betty is now a conveyancing clerk of Messrs Annie Leung & Co.. At the material time, Betty was a clerk employed by Messrs. Shea & Co. and she was an acquaintance of PC.

104. Betty came to know Lan through the introduction of his ex-girlfriend known as Ah Sa. Ah Sa was her ex-colleague in or about 2006. PC was a friend of Ah Sa and was a secretary to a barrister. Betty knows Man Yi and has met her once or twice. They did not contact each other directly.

105.  In November 2008, Betty received a phone call from PC concerning a new instruction for the preparation of a will. Shortly afterwards, Betty received an email from PC dated 17 November 2008 (“the Email”). The contents were as follows:

“Dear Betty

attached herewith some details for your easy reference -

(1) G/F and 1/F of No.257 Ma Wan Main Street, Village Central, Ma Wan Island, New Territories will assign to Mr Cheung Wing Lan, holder of HKID No.PX0XXXX (0) and not allow to sell

(2) All money save under joint name account with Mr Cheung Wing Lan at Shanghai Commercial Bank Limited will belongs (sic) to Mr Cheung Wing Lan

(3) Money at HSBC for preparing of funeral, balance left will go to Miss Cheung Wan Yin for her to buy a bracelet.

Should you need further details you may contact Wan at 9XX2-XXXX.

Thanks

Best Regards

Phobe”

106.   She then had several phone calls with PC and no one else to finalise the instructions. PC told her that she had obtained the instructions from Man Yi. Betty did not take any instructions from Man Yi or Lan directly. She also explained how the instructions were finalised.  

107.  In accordance with the finalised instructions, Betty prepared the draft will. Then she contacted Lan to fix a time to meet the Deceased in the presence of a medical officer. Eventually, she went to PMH with Ms Leung in the morning of 19 November 2003. All along she was in the company of Ms Leung when she dealt with the Deceased. She stood at the rear side of his bed. Finally, she attested the execution of the 2008 Will. She was also satisfied that the Deceased was having a sound mind and spoke clearly and coherently.

Dr Ho

108.  Dr Ho was a medical doctor in PMH in 2008. Since 1993, he has been serving PMH and now he is an Associate Consultant. He was the in-charge medical officer of the Deceased from 13 November 2008 till the Deceased’s death on 27 November 2008.

109.   On 19 November 2008, Dr Ho conducted a medical examination to assess whether the Deceased was of sound mind to make a will. He then observed the Deceased at about 10:45 a.m. at the bedside and administered some tests on him by way of general conversation. He found that the Deceased could tell him his name, and identify him, Lan and Yi correctly. He knew which hospital he was staying in and he could tell him the time up to the hour. He could follow Dr Ho’s commands to move his body parts. Dr Ho also agreed that the Deceased could tell correctly what he had taken for breakfast that morning with the confirmation by the nurse taking care of him.

110.   Dr Ho also checked all the medical records of the Deceased for the purpose of his assessment of the mental capacity of the Deceased. On that occasion, the Deceased was admitted to PMH due to his chest infection and deterioration of his renal failure. Previously, in 2008, the Deceased had been admitted to PMH thrice. Dr Ho found no history of neurological or psychiatric disorder. Since his admission on 13 November 2008, the Deceased appeared to be alert, calm and co-operative and spoke relevantly and coherently. No abnormal or unusual behaviour was ever noted. The Deceased was reported to be able to feed himself and tolerate the non-invasive positive pressure ventilation machine well. Dr Ho found that the Deceased had a stable blood pressure and good oxygen saturation. Dr Ho certified that the medical condition of the Deceased was stable on 19 November 2008.

111.   Dr Ho did not experience any difficulty in his communication with the Deceased despite his mask. By reason of the foregoing matters and observations, Dr Ho concluded that there was no impairment whatever degree of the mind of the Deceased. Therefore, Dr Ho certified in writing that the Deceased was fully conscious, mentally sound and stable to arrange and decide on his financial affairs on 19 November 2008. The certificate is included in the bundle and the printing information appearing in the certificate shows that the certificate was printed at 10:39 a.m. on 19 November 2008. Eventually, Dr Ho gave the certificate to Lan.  

112.  Dr Ho added that the condition of the Deceased remained relatively stable until 25 November 2008. From then onwards, his condition deteriorated and his mental dullness increased. Within two days, he passed away due to end stage renal failure and chest infection. 

113.   Under cross-examination, Dr Ho disclosed that it was the second time that he had been asked to assess the testamentary capacity of his patient. He also accepted that he did not know that the Deceased had two previous wills making very different dispositions. He maintained that had he known that, he would have asked Ms Leung to look for some one with more expertise in those matters.

Dr Cheung

114.    Dr Cheung was provided with all the materials in the trial bundles for him to give his expert opinion on the testamentary capacity of the Deceased. He opined that the mental capacity of a person could be assessed on two levels, i.e., a general capacity and a task-specific capacity. For the latter, he was well aware of the criteria set out in Banks v Goodfellow.

115.   On the level of general capacity, his opinion is that a normal adult person is regarded as capable of making decisions in general. He viewed that it was the approach adopted by Dr Ho and given Dr Ho’s observations that the Deceased was “fully conscious, mentally sound and stable”, Dr Cheung too concluded that the Deceased was presumptively capable of deciding on his own affairs.

116.   However, on the level of task-specific mental capacity, he opined that it was unfortunate that Dr Ho had not conducted a test on the Deceased’s task-specific mental capacity in accordance with the criteria in Banks v Goodfellow. In particular, Dr Cheung pointed out that Dr Ho did not test the Deceased’s knowledge of persons who had a reasonable claim to be a beneficiary and his understanding of the impact of the distribution of the assets of his estate.

117.  That said, in the absence of any evidence of impairment of the mental (both intellectual and memory) capacity when the 2008 Will was executed, Dr Cheung regarded the Deceased as mentally competent.

118.   Lastly, when pointed out to Dr Cheung that the credit balance in the Account turned out to be a meaningless gift, as explained below, Dr Cheung accepted that it could be a piece of evidence indicative of memory impairment. However, he required more instances of memory disturbance of the Deceased to conclude that his memory capacity was so impaired that his testamentary capacity is affected.

Defence case and evidence

119.  The defence case is heavily based on a family property allocation plan (“the Plan”). The pleaded case in respect of the Plan is that in late 1992, the Deceased, the Mother and the Aunt had a meeting arranged at the Mother’s House. Chee also attended the meeting. The Deceased and the Mother came up with the idea of making the Plan due to their participation in the Scheme with SHK. They anticipated that they would be entitled to two three-storey village houses to be constructed by SHK in Ma Wan. During the meeting, the Deceased and the Mother decided that each of Chee and Chiu would be entitled to two flats and each of Man Yi and Wah would be entitled to one flat. After acquiring the two flats, Chee would be obliged to give the Aunt a sum of HK$200,000 since she was also a member of the Kwok family. These are the contents of the Plan. Chee finds the 2008 Will to be inconsistent with the Plan and hence he claims that it is irrational. It is to be noted that in his evidence, Lan denies the existence of the Plan after making enquiries with his mother and other villagers in Ma Wan.

120.  Another criticism about the rationality of the 2008 Will, or the lack of it, is that the Deceased, being a traditional Chinese, had no reason to disinherit all his children and grandchildren save Yin and Lan. Even Min is not one of the beneficiaries though she is in the same family as Yin and Lan. In any case, they were merely his grandchildren in his daughter’s family (外孫) and what Lan would inherit is a family asset evidencing the indigenous status of his family.   

121.   Further, the credit balance of the Account was obviously not enough to pay for the funeral expenses. The Deceased had no reason to bequeath the same to Yin after deduction therefrom the funeral expenses. The disposition was in reality meaningless and Chee claims that this is another sign of the Deceased’s lack of testamentary capacity.

122.  Chee himself visited the Deceased during his last hospitalisation in PMH and found that he was without his glasses and hearing aid. Chee wonders how the Deceased had knowledge of and gave approval for the 2008 Will.     

123.   In terms of evidence, both Chee and Chiu testified. Dr Chung See Yuen (“Dr Chung”), a specialist in Psychiatry, testified for the defence. Lastly, the defence also filed a witness statement of one Cheung Kwok Kwong (“KK Cheung”). KK Cheung was the cousin of Chee and was the district councillor of the Tung Chung District. KK Cheung passed away after he made the witness statement and hence did not testify for the defence at trial. His statement is however admitted as hearsay evidence.

124.   Most of their evidence is not relevant to the key issues identified above. The major part of the evidence of Chee was uncontroversial and such part is summarised above as background facts. I shall further briefly summarise the defence evidence as follows.

Chee

125.  He is the most well-educated member of the Deceased’s family. He only took part in the Chinese takeaway business of his parents in London in the final year of his undergraduate studies in 1979. He only worked for a year and he resided with his parents in that year.

126.  He had a successful career. He is a man of considerable wealth. Among all the children of the Deceased, Chee accepts he is in the best financial condition. He once owned two houses in Hong Lok Yuen, Tai Po and one of them was just sold for profit. He claims that a lot of residents in Ma Wan borrowed money from him. One of such debtors was the chairman of the rural committee and he had to resort to litigation to recover the loan in the sum of HK$600,000 a few years ago.

127.   Chee testified in support of the allegation of the Plan. The Deceased made known the Plan to his other remote family members such as KK Cheung.

128.   The 2000 Transfer was not covered by the Plan. It involved a property in London. No objection was ever raised to the transfer among the children of the Deceased. The financial condition of Yi was least stable within the family and all of her siblings were happy that she could be relieved by the transfer.

129.   The Mother’s Will was a partial realisation of the Plan. Chiu got two flats and Yi got one flat of the Mother’s House. It was not in conflict with the Plan. The House was originally owned by the Deceased’s father and so the House should be best kept in Chee’s possession as he was the eldest son of the Deceased.

130.   Chee explained that though he was the sole beneficiary under the 2002 Will, he was expected to carry out the Plan and he would transfer one of the three flats of the House (at that time not yet constructed) to Wah. The remaining two flats would belong to him.

131.   As regards the 2004 Will, Chee explained that it was not really a departure from the Plan. He had been kept in the dark as to its execution as well as its contents. He only learnt from his brother-in-law in London whose cousin worked in RYC that the 2004 Will had been made. Thus, Chee had a discussion with the Deceased in the presence of the Aunt about the 2004 Will. Chee did not ask the Deceased to amend the 2004 Will. The Deceased made it clear to Chee that it was meant to be an expedient only in view of Chee’s cancer. The Deceased promised Chee that the 2004 Will would be destroyed after his recovery from his cancer.

132.   Chee agrees that he was incensed to find out about the 2005 Gift. Chee had discussions with the Deceased afterwards. He reminded the Deceased of the Plan and according to the Plan, Wah should be entitled to a flat of the House while the remaining two flats should belong to him.  Wah learnt about this dispute. She expressly gave up any potential entitlement to a flat of the House. Her noble renunciation is known to all other siblings including Chee and Man Yi.

133.   Chee accepts that his wife and his children never paid any visits to the Deceased at the House. He himself only went to the House to visit the Deceased when Lan and Yi were not around. He did not want to see Yi because he found her greed objectionable.

134.   Finally, Chee does not regard the 2005 Application as a gift to him. He explained that it was by no means a certainty that his application would succeed given the fact that his eligibility to make the application was once challenged by other villagers.  

Chiu

135.  Chiu made the trip from London for the specific purpose of testifying for Chee. He is a low-key member of the family. He is obviously appreciative of Chee’s contribution to the family. 

136.  Chiu’s evidence is that his parents retired when they sold their business in 1985 and thereafter relocated to Hong Kong. Chee took good care of them in Hong Kong. They occasionally returned to the UK and Chee paid for their air tickets.

137.  He recalled that there was a meeting in his home in London in or about 1992. Man Yi and the Mother were present. He was not sure whether the Deceased attended the meeting. The Mother disclosed the Plan to them there.

138.  According to Chiu, Chee undertook all the funeral arrangements relating to the Mother in Hong Kong. He also paid for all the expenses. Chee was kind enough to handle the administration of the Mother’s Will on their behalf and transferred the properties of the Mother to Yi and Chiu pursuant to the Mother’s Will. After Chiu inherited the two flats of the Mother’s House, they have been rented out and Chee has handled all the rental matters on his behalf. Chee has even undertaken to remit all the rental proceeds to Chiu in London regularly.

139.  Chiu rushed back to Hong Kong and visited the Deceased in PMH before his death. During one of the daily visits, Chiu observed that the Deceased looked unconscious and was unable to converse with him. The Deceased only managed to nod when Chiu raised his voice to tell him that he was his youngest son.

140.  Chiu recalls that on that occasion, he stayed in Hong Kong for four to five days and that the Deceased passed away the day after he returned to London. In other words, his observation about the Deceased was made after 20 November 2008, subsequent to the execution of the 2008 Will.

Dr Chung

141.  Dr Chung first fairly accepts that there is no evidence that the Deceased had ever suffered from any mental illness. He also accepts that there is no evidence that the Deceased had any insane delusion which would have adversely influenced his will in disposing of his property.

142.  However, he pointed out that it is reasonable to suspect that the Deceased would have displayed a certain degree of intellectual and memory impairment due to his old age and multiple medical illnesses. Dr Chung in particular pointed out that the requirements in Banks v Goodfellow, and in that there is no evidence to show that the Deceased understood the extent of his property of which he was disposing (the amount in the bank accounts and the approximate valuation of his landed properties) and there is no explanation for the radical change of his testamentary dispositions in the 2008 Will.

KK Cheung

143.   The evidence contained in his witness statement is mostly irrelevant. He confirmed that the Deceased and the Mother relocated to Hong Kong in the mid-eighties and ever since they had had regular gatherings and sometimes played mahjong together. He also said that after the death of the Mother, the Deceased still visited him in Tung Chung regularly.

144.   Lastly, KK Cheung maintained that he had heard about the Plan from the Deceased and the Mother in early 1993 when they paid a visit to his home.

Evaluation of evidence and legal analysis

145.   By way of a general observation, the evidence of and adduced for Lan is overwhelming despite the criticisms of Mr Miu about certain minor inaccuracies. Legal arguments in relation to presumptions and burden of proof aside, such evidence is very convincing despite those conflicting evidence adduced by the defence. The overall picture is quite clear to me.

146.   Lan appeared to be a youthful and straightforward gentleman making a genuine effort to tell his honest experience with and observations of the Deceased after they returned to Hong Kong. One aspect that I disapprove of in his evidence is that his witness statements contained unnecessary hearsay allegations but this may not be his fault. Also, there might be some exaggerations in his description of how he took care of the Deceased when he was ill. Nevertheless, on the whole I found him a sincere and credible witness.

147.   Man Yi also struck me as a straightforward and truthful witness. She was forthcoming and she sounded reasonable. She frankly accepted that Chee had long given his love and care to the family and that she was very close to him before 2004. She also openly admitted that the 2005 Gift was made owing to her morally objectionable demand. I prefer her evidence to that of Chee and Chiu wherever they are in conflict save those relating to the Plan, as explained below. I do not find her mistakes about dates and her confusion as to how she caused the 2008 Will to be drafted by Betty damaging to her general credibility.  

148.  All of Ms Leung, Betty, Dr Ho and Dr Cheung are credible independent witnesses. The two medical professionals sounded very fair and reasonable. I have no hesitation in accepting their evidence in its entirety. In fact, Mr Miu did not really dispute the truthfulness of their evidence in their cross-examinations.

149.   I should particularly mention that though it was only in the witness box that Ms Leung said for the first time that she had made enquiries with the Deceased as to whether there were other properties to be disposed of and whether there were other beneficiaries, I accept this piece of evidence as well. She was an impressive witness to this court and I do not believe that she was making it up.

150.  There are actually not many relevant factual disputes arising from the evidence of Chee and Chiu. Chiu struck me as a fair and honest witness and I have little difficulties in accepting his evidence save those relating to the alleged resettlement of the Deceased in 1985.

151.  Chee was on the whole not really a bad witness except towards the end of his cross-examination when he made a desperate attempt to prejudice Man Yi by some new disparaging allegations. Chee appeared to be unable to accept the fact that the Deceased had changed his heart and the unfortunate breakdown of their relationship. He lacked empathy for the Deceased’s situation in my view. His judgment is clearly clouded by his jealousy of Man Yi. It is indeed a pity that he fails to see the big picture.

152.  On the other hand, I am unable to accept the conclusion of Dr Chung, which is not supported by cogent reasoning and his analysis is not convincing to me. For example, whilst he agreed with Mr Chong that the disposition relating to the House under the 2008 Will involved sophisticated thinking, he only accepted that if the Deceased could explain in his own words this disposition to Ms Leung, his intellectual and memory capacity was just “not too bad”.  I have concern about the fairness of this expert witness.

153.   After examining all the documentary and oral evidence, I make the following factual findings:

(1)   The Deceased and the Mother agreed to the Plan in or about 1992. The Mother’s Will was a partial realisation of the Plan. The Deceased once expected that the 2002 Will would be administered in accordance with the Plan, i.e., two floors of the House to be transferred to Chee and the remaining floor to be transferred to Wah;

(2)   The Deceased changed his mind by making the 2004 Will, partly because of the grave illness of Chee. He refused to stick to the Plan despite protests raised by Chee. The relationship between Chee and the Deceased turned sour as a result;

(3)   The Deceased’s return to Hong Kong in January 2005 was meant to be the last one, given the diagnosis that he could not live for more than six months. Unlike his previous stays in Hong Kong, he did not return to the UK from 2005 to 2008.

(4)   The 2005 Gift tore them further apart. Chee could not accept that the Deceased gave up the Plan and showed undue generosity to Man Yi in addition to the 2000 Transfer.  

(5)   The Deceased did not feel sufficient care and love from Chee, Wah and Chiu from 2005 onwards. He felt much closer to Lan, who kept him company at the final stage of his life. He was concerned about Lan’s life in Hong Kong and did not trust Man Yi financially. He wanted to provide for Lan.

(6)   On the other hand, the Deceased did not find it necessary to provide for Chee, Wah and Chiu any further, especially given the 2005 Application. 

(7)   The Deceased intended to give a gift to Yin but he forgot that the credit balance could not possibly cover his funeral expenses.

(8)   The Deceased himself gave instructions about his testamentary dispositions to Ms Leung on 19 November 2008 and the 2008 Will was executed in the exact manner as narrated by Ms Leung and Betty.

(9)   According to the account given by Dr Ho, he did sufficiently confirm the mental soundness and capacity of the Deceased before he executed the 2008 Will.

154. In making the foregoing essential factual findings, I obviously accept the bulk of the evidence adduced on behalf of Lan and his own evidence. I shall further elaborate on their evidential basis and my reasoning as follows.

155.   Firstly, the Plan sounded logical and probable. The Plan explains the Mother’s Will perfectly. Without the Plan, there is no apparent reason why the Mother would make such dispositions under the Mother’s Will in 2002. Man Yi had already been given the benefit of the Plaistow Property in 2000. Man Yi and Chiu had no plan at that time to relocate to Hong Kong. I accept the explanation of Chee that the next step to carry out the Plan was to transfer two floors of the House to Chee and the remaining floor to Wah.

156.  The Plan was meant to be an understanding between the Deceased and the Mother concerning their own properties to be realised with the assistance of Chee. I accept the evidence of Chee that the Plan was formed at a meeting in Hong Kong in the presence of the Aunt. Understandably, Man Yi was not involved in the discussion of the Plan and she might not even have been formally informed. Even if the Mother had brought up this matter with her children in the UK, she might not have dressed the Plan up as a formal and binding decision. I do not doubt Man Yi’s credibility merely because she denies the existence of the Plan.

156.      The 2004 Will represented a change of the Plan and of course the 2002 Will. I accept the evidence of Lan that the Deceased disliked the wife of Chee because of her inadequate care given to Chee (in the eyes of the Deceased, rightly or wrongly) when he was very ill. As explained by the Deceased when confronted by Chee, the change was also due to Chee’s cancer.  

157.  I, however, refuse to accept Chee’s evidence that the Deceased had promised to destroy the 2004 Will after he had totally recovered from his cancer. The Deceased might have made a false promise to avoid further confrontation with Chee but if there had been such a promise, there is no reason why Chee did not mention it in his pleaded case. He merely alleged that the Deceased made the 2004 Will under the undue influence of Man Yi. He also did not mention such a promise in his witness statements. I also note that there is no evidence that Chee had ever asked the Deceased to destroy the 2004 Will before his death.

158.  I accept the evidence of Lan that Chee repeatedly complained to the Deceased about the 2004 Will and the Deceased’s reaction thereto. Under those circumstances, it was hardly surprising that the Deceased was emotionally driven away from Chee despite all his care and contribution to the family in the past.

159.    I accept the evidence of Lan that Chee and the Aunt had a row with the Deceased during the Visit about the 2004 Will and I also accept Lan’s evidence of the Deceased’s reaction to/disapproval of the demands of Chee and the Aunt. Given the Deceased’s unequivocal indication that Chee should forget about his estate, it was hardly surprising that the Deceased subsequently disinherited Chee in his last will.

160.   The 2005 Gift was unacceptable to Chee obviously. Chee’s eyes were welled with tears in his oral testimony when he complained that there was no reason why the Deceased should be exceptionally generous to Man Yi in making the 2005 Gift. His jealousy is too plain to go unnoticed.

161.   It is obvious that the relationships between the Deceased and Chee, Wah and Chiu were, to say the least, not close, from 2005 onwards. As frankly admitted by Chiu, he only visited the Deceased at the House with his children once. There is no evidence that Wah and/or her husband has ever stepped into the House at all though her daughters had paid the Deceased a visit once. I do not accept the submission of Mr Miu that they were busy people and so their inability to pay a visit to the Deceased throughout his last three years is understandable. The Deceased’s complaint to Lan about his being neglected was totally understandable.   

162.  I do not accept the explanation of Chee that he visited the House only when Lan and Yi were not around. I do not believe that he had ever made such secretive visits. There is no reason why the Deceased did not let Lan and Yi know if Chee had really gone to the House. In any event, the admitted fact that Chee’s wife and his children had never been to the House even on festive occasions is most indicative of the loose if not poor relationship between the Deceased and Chee’s family.

163.   There are three matters which further show the deteriorating relationship between the Deceased and Chee from 2005 onwards. In cross-examination, Chee first maintained that he visited the Deceased whenever he was hospitalised in Hong Kong from 2005 to 2008. But when asked about the details, he retracted and put up an excuse that he resided in Tai Po. I assume he meant that it was too far for him to make such visits.

164.   Another remarkable piece of evidence is that Chee alleged that he only stopped paying pocket money in the sum of about HK$4,000 to the Deceased when the House was available to the Deceased for rental income in early 2005. The incontrovertible evidence is that the ground floor of the House was only on lease in November 2006.

165.   Chee tried to dig out some photographs depicting the outings participated by the Deceased and him including overseas trips and Chee’s family’s visit to the Deceased’s home in London. It is worthy of note that all such photographs was taken before he had cancer in 2004. None of them relates to any event taking place in or after 2005.

  167.  Mr Miu mounts serious challenge to the alleged care given by Lan to the Deceased. I too have doubt as to how the young man with a full time job managed to take such good care of an ailing elderly man. Mr Miu submits that Lan was only living close to the Deceased and it was the Deceased who took care of Lan financially by providing him with free accommodation. I cannot agree to this submission. It was not the quality of the service rendered by Lan that actually mattered. The company that Lan kept with the Deceased particularly when his days were numbered and when he felt neglected by his children could mean a lot to the Deceased.

168.    The 2005 Application should be in any view a financial advantage given to Chee albeit conditional upon its being approved. Chee had already had more than enough on his plate and it was not unreasonable that the Deceased did not find it necessary to provide for Chee and his family.

169.    According to the Email, the Deceased intended to buy a bracelet for Yin with the credit balance in the Account after deduction of the funeral expenses. The unchallenged evidence is that Yin was close to the Deceased and on occasions she drove the Deceased home when they were both in London. Yin also returned to Hong Kong to visit the Deceased during his last hospitalisation in PMH.

170.   Mr Chong accepts that the sum of HK$2,334.64 could not be enough to cover the funeral expenses. He submits that it does not follow that the disposition relating to the Account is irrational. He submits that given the fact that the Deceased had been told by Man Yi that that was only one of his many regular hospitalisations, the Deceased had every reason to believe that he could transfer sufficient funds into the Account from the Joint Account so that the disposition would be materialised.   

171  .  I cannot accept this submission. There is clear evidence that the Deceased himself felt that he was in a very different physical condition and he found it necessary to make a will in PMH and did not ask to wait for his discharge to execute the same. In my judgment, the Deceased plainly anticipated his imminent death but he made a mistake about the amount of the credit balance in the Account.

172.   It can be seen in the bank book of the Account that it was used to receive monthly old age allowance ($705/month) from the government only. The maximum balance was HK$9,399.64 as at 7 July 2008. It was only after the two withdrawals of HK$5,000 each on 7 July 2008 and 25 August 2008 that the balance stood at HK$2,334.64 only. There is no evidence of the average costs of an ordinary funeral of a Chinese in Hong Kong but Mr Chong accepts that even HK$9,399.64 could not suffice however frugal the Deceased was and despite his entitlement to a free graveyard in Ma Wan.

173.   I should mention that there was confusion as to how PC obtained further instructions from Man Yi. Man Yi’s evidence is that she asked PC to contact Lan for the purpose of preparing a will in her first call. However, according to the evidence of Betty, she required further instructions to finalise her draft will and she was told by PC that such instructions were subsequently given by Man Yi. It is unclear as to how and from whom such further instructions were obtained. However, this is irrelevant in light of Ms Leung’s evidence that the Deceased himself gave instructions to Ms Leung on his sickbed in the morning of 19 November 2008.

174.   With the general principles set out in paragraphs 35 to 58 hereof in mind, I proceed to do a legal analysis of the evidence accepted by this court.

175.  Lan bears the legal and persuasive burden of proving on a balance of probabilities that there was due execution of the 2008 Will, that the Deceased was of testamentary capacity and the Deceased knew and approved of the contents of the 2008 Will.

176.   Lan seeks to rely on the presumption of testamentary capacity, as explained in Sutton v Sadler, supra, on the basis that the 2008 Will was duly executed and that it is rational on the face of it. I am satisfied that there was due execution and the 2008 Will is rational on the face of it, there being no irrational inconsistency within the document. I am also convinced that rationality in its context is not required for the presumption to be operative. I, however, do not think that the presumption assists Lan in the circumstances of the present case.

177.   As explained by Mann J in Schrader v Schrader[3], supra, the presumption would apply only if there is no other evidence, for example, in cases where ordinary probate applications are made to a registry. In the present case, there is a lot of other evidence and I am obliged to consider it all in the round. The presumption will necessarily fade away into the background and I still have to consider whether Lan can discharge his burden to prove capacity on the evidence.

178.  On the issue of testamentary capacity, with the acceptance of the evidence of Ms Leung, Dr Ho and Dr Cheung and the uncontradicted medical evidence of the Deceased, I am left with no doubt that it is established and that the Deceased had the requisite testamentary capacity to make the 2008 Will.

179.  The fact that Dr Ho did not carry out a task-specific mental capacity assessment on the Deceased does not cause me any concern when all the relevant evidence is considered in the round. Nor does the allegation that Ms Leung did not fulfil all of the requirements in Banks v Goodfellow in that she did not make any enquiries with the Deceased as to whether the Deceased knew any persons who might have a reasonable claim to be beneficiaries and that she did not check if the Deceased understood the impact of the distribution of the assets.

180.  It is important to note that the court does not require proof of actual knowledge and understanding. The following dictum of Gibson LJ in Hoff v Atherton [2005] WTLR 99 (at §34), cited with approval by Poon J in Chiu Man Fu, supra, is apposite:

“… If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the Will but it may also relate to prior or subsequent events. It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution.”

181.  Ms Leung’s evidence is that the Deceased replied to her that he had no other property to be disposed of and there was no other beneficiaries to be included.  It can be reasonably inferred that the Deceased did go through the thinking process before making the reply and hence he did have the requisite knowledge and understanding.

182.   I would accept that it would have been better for Ms Leung and/or Dr Ho to have discussed the 2004 Will with the Deceased and asked for his explanation for the change. However, given the overall assessment of his capacity by Ms Leung and Dr Ho and in the absence of any evidence of intellectual and memory impairments, I agree with the conclusion of Dr Cheung that the Deceased could be considered mentally competent.

183.   I should explain why I am not satisfied that there is adequate evidence of memory impairment. The Deceased clearly had a mistaken view about the credit balance in the Account as at 19 November 2008. Mr Chong points out that it is not necessary that the testator has to know the value of his property with a high degree of precision, relying on the dictum of Mann J in Schrader v Schrader, supra, at §81. Mr Miu accepts this proposition.

184.   Mr Miu, nevertheless, submits that the Deceased should have been aware of the nature of the transactions of the Account. It was used by the Deceased to receive modest monthly allowances only. Be that as it may, it does not mean that there could never be enough funds accumulated in the Account to defray the expenses of an ordinary funeral. Mr Miu draws my attention to the actual funeral expenses incurred in the excess of HK$60,000. I do not find this of relevance. There is no evidence the Deceased had ever requested for such funeral services subsequently rendered and approved such costs. He could well have in mind the basic funeral services for himself given the very modest disposition of the Deceased.

185.  Further, the Deceased indeed demonstrated his sound memory capacity by the fact that he was able to give Ms Leung those detailed instructions relating to the 2008 Will. When the contents of the 2008 Will and the evidence of the interactions between the Deceased and Ms Leung and Dr Ho are considered as a whole, this mistake about the Account alone could not amount to a significant memory impairment vitiating the mental capacity of the Deceased. After all, it was only one single isolated incident of a memory slip. There is no other evidence of memory impairment.

186.  I now turn to the issue of rationality for the purpose of assessing the testamentary capacity of the Deceased. According to the authorities, I am not concerned about the fairness and/or reasonableness of the testamentary dispositions of the Deceased.

187.  As explained above, I am satisfied that the 2008 Will is not in any way irrational. Whilst it represents a dramatic change of previous testamentary dispositions in the 2004 Will, the explanation for the change is not hard to fathom on the evidence. The Deceased had his reasons to provide for Lan as much as he could and disinherit Chee in light of the relationship between Lan and the Deceased and the relationship between Chee and the Deceased in his closing days and the 2005 Application. I would not pass any judgment on the morality and reasonableness of his decisions.

188.   Mr Miu highlights to me the evidence of Chiu to the effect that the Deceased and Lan were not particularly close when they resided in London. He submits that there is no reason why the Deceased made Lan effectively the sole beneficiary under the 2008 Will. I cannot accept this submission. The focus must be on their relationship at the time when the 2008 Will was made. I accept that they were very close after their relocation in Hong Kong in 2005.

189.   Mr Miu makes a further point that if this court accepts the existence of the Plan, it should also accept that the Deceased was a traditional Chinese. Hence, it should also accept that the Deceased tended to favour male descendants in the family. The conclusion is that there is no reason why the Deceased would favour Lan, who is only one of his ten grandchildren, who even has a different family name, to the exclusion of other grandchildren, even including Lan’s younger sister. Hence, he submits that the 2008 Will is irrational.

190.   Testamentary dispositions involve a number of considerations and human psychology is complicated. I refuse to take the simplistic approach as advocated by Mr Miu. In any event, I am convinced that the Deceased had his own reasons to make Lan effectively the sole beneficiary under the 2008 Will.

191.   For the reasons given above, I do not think the provision relating to the Account renders the 2008 Will irrational so as to cause any genuine concern about the testamentary capacity of the Deceased.

192.    All in all, I do not accept that there is credible evidence of irrationality of the 2008 Will so as to call the testamentary capacity of the Deceased into question.

193.   It is noteworthy that there is not a shred of medical evidence that the Deceased had suffered any mental incapacity caused by his illnesses. The evidence of Ms Leung, Dr Ho and Dr Cheung is more than enough to establish on a balance of probabilities that the Deceased was of testamentary capacity on 19 November 2008.

194.  For the issue of knowledge and approval, I shall adopt the test set out by Poon J in Chiu Man Fu, supra, (§254):

“… the only question is to determine is whether the testator had understood what was in the will when he signed it and what its effect would be. It is a single issue to be determined by reference to all the relevant evidence and to be determined by reference to all the relevant evidence and to the appropriate inferences to be drawn from the totality of the evidence available.”

195.   With my findings of due execution and testamentary capacity in favour of Lan, the well-established rebuttal presumption that the Deceased knew and approved of its contents arises and Mr Chong relies on this presumption in his closing submissions.  

196.    This presumption relieves the person propounding the will of the need to adduce affirmative evidence of the testator’s knowledge and approval of the will’s contents: Nina Kung v Wong Din Shin, supra, per Ribeiro PJ at §206.  Since Lan has actually adduced affirmative evidence on this issue, I shall proceed to assess the same.

197.   To recap, Ms Leung’s evidence, which is also accepted by me, is that the Deceased gave her verbal instructions of his testamentary dispositions and they accorded with the contents of the draft will prepared by Betty. Ms Leung herself read over the 2008 Will to the Deceased twice and let the Deceased read it. The Deceased confirmed to Ms Leung his approval of the contents. Dr Ho confirmed the soundness of the mind of the Deceased at the relevant time.

198.    I have no doubt that the Deceased knew and approved the contents of the 2008 Will. I do not believe his presbyopia and hearing problem had caused him any significant difficulties in his reading and understanding of the 2008 Will.

199.   There is a debate as to whether the Second Rule is applicable. Mr Chong points out that in the present case, the Deceased himself gave instructions about his testamentary dispositions to Ms Leung directly. Any initial instructions given through Man Yi has become irrelevant. As such, the Second Rule does not apply.

200.  Mr Miu does not make submissions on the alleged direct instructions given by the Deceased and he just argues that the Second Rule is applicable in reliance of Harwood v Baker (1840) 3 Moo PC 282 and Battan Singh v Amirchand [1948] 1 A.C. 161.

201.  I agree with Mr Chong that the Second Rule does not apply on the evidence accepted by this court. The two cases relied on by Mr Miu do not really assist him. Suffice it for me to point out that in Battan Singh v Amirchand, the testator did not give instructions to the drawer of the will at all but through a lay intermediary. In Harwood v Baker, the facts are very different and the Second Rule was not engaged at all.

202.   In any event, even if the Second Rule applies, after subjecting the evidence of the plaintiff (in particular, those of Ms Leung) to a vigilant and jealous examination, I find it so overwhelming and persuasive that all the alleged suspicions about the circumstances surrounding the 2008 Will are dispelled. Indeed, I do not agree that they were suspicious at all.

203.   I should make it clear that I am alive to the fact that the 2002 Will and the 2004 Will were not prepared by RYC. Ms Leung was new to the Deceased and her professional service was procured by Man Yi on behalf of the Deceased. Yet, the evidence accepted by me is that the Deceased himself asked Man Yi to find him a lawyer to prepare a will for him when he indicated that he found his physical condition markedly different. The fact that Ms Leung but not RYC prepared the last will does not cause me any concern under these circumstances.

204.  To conclude, I am of the firm view that the 2008 Will represents the true testamentary intentions of the Deceased and Lan has sufficiently proved the righteousness of the transaction.

Conclusion and Orders

205.   I am satisfied that Lan has adequately discharged his burden of proving on a balance of probabilities that there was due execution of the 2008 Will, the Deceased was of testamentary capacity and the Deceased knew and approved of the contents of the 2008 Will despite all the suspicious circumstances surrounding the 2008 Will alleged by the defence.

206. I therefore enter judgment in favour of Lan. I order that the 2008 Will be propounded in its solemn form and be admitted to probate.

207. I do not find the opposition mounted by Chee reasonable notwithstanding his absolute disinheritance. Costs should follow the event. I further make an order nisi that Chee should pay Lan his costs of this action including all costs reserved.

208. It remains for me to thank all counsel on both sides for their industrious and thorough submissions.    

[1] It provides, “A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under sub s.(1), be deemed to be duly executed in, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person.

[2] Poon J gave the following examples: partial unsound mind in Banks v Goodfellow, mild to moderate dementia in Hoff v Atherton [2005] WTLR 99, stroke in Carr v Beaven [2008] EWHC 2582 (Civ).

[3] At §§76-79 of the Judgment.